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REASONS FOR DECISION
On Tuesday, 15th January, 2001,
we unanimously granted the
prayer of Madam Hawa Yakubu, the
applicant herein, to quash the
proceedings and order of the
Bolgatanga High Court dated 6th
January, 2001 in petition No.
C.S. 18/2000 intituled Hajia
Fati Seidu Vrs. Madam Hawa
Yakubu & 2 Ors. We reserved our
reasons which we now proceed to
deliver.
Madam Hawa Yakubu and Madam
Hajia Fati Seidu were two of the
candidates that contested in the
7th December, 2000 parliamentary
elections for the Bawku Central
Constituency. Madam Hawa Yakubu
stood on the ticket of the New
Patriotic Party (NPP), while
Madam Hajia Fati Seidu was the
National Democratic Congress (NDC)
candidate. In all there were 151
polling stations in that
constituency. The result of the
votes counted showed Madam Hawa
Yakubu winning that
parliamentary seat. Thereafter,
Madam Hajia Fati Seidu filed a
petition at the Bolgatanga High
Court against Madam Hawa Yakubu
as 1st Respondent, the Electoral
Commission as 2nd Respondent,
and the Attorney-General as 3rd
Respondent, for:
1. An order of the Honourable
Court directing an examination
of all votes cast for the
Parliamentary elections in all
the 151 polling stations of the
Bawku constituency and in
particular to order a scrutiny
of the votes of the 4 polling
stations that were not accounted
for on the 7th and 8th days of
December, 2000.
2. A declaration by the Court
that the Petitioner had majority
of all lawful votes cast for the
parliamentary elections in the
Bawku Central Constituency
conducted on 7th December, 2000.
3. A perpetual injunction
restraining the 1st Respondent
from styling and/or holding out
herself as duly elected Member
of Parliament for the Bawku
Central Constituency and more
particularly from taking up a
seat in Parliament and
participating in any proceedings
of Parliament.
4. A perpetual injunction
restraining the 2nd Respondent
and 3rd Respondents from
gazetting the 1st Respondent as
the duly elected Member of
Parliament for Bawku Central
Constituency.
A notice of discontinuance was
later filed to discontinue the
petition against Madam Hawa
Yakubu
On 6th January, 2001, the
Bolgatanga High Court granted
the discontinuance and after
hearing Counsel for the
Petitioner, the 2nd Respondent
and that of the 3rd Respondent,
proceeded to order
“.... the recollation and adding
up of the polling officers
reports of votes cast as
forwarded to the Returning
Officer after the election on
7th December, 2000 and if the
matter of controversy over the
actual figures are not resolved
by that exercise, for the
parties i.e. the 2nd Respondent,
a representative of the 3rd
Respondent, two representatives
each of the NDC and the NPP to
proceed further to take a
physical count of all the valid
votes cast respectively for the
NDC and NPP candidates. The
designated team is to compile a
report to be signed by each one
of them indicating the returns
and or votes from each polling
station for each of the two
parties. The report in the form
of affidavit must be filed in
this Court before the close of
day on Monday, 8th January,
2001”.
It is the proceedings and order
of 6th January, 2001 that we
quashed following Madam Hawa
Yakubu’s application for
certiorari.
Two reasons were advanced by
Nana Akuffo Addo, leading
Counsel for the Applicant in
support of the application —
first, the proceedings and order
were made in breach of the rules
of natural justice,
particularly, the audi alteram
partem rule, and second, the
petition was premature in view
of Section 18(1) of the
Representation of People’s Law
1992 (PNDCL 284).
Mr. Kwaku Baah, Counsel for the
2nd Respondent filed no papers
in opposition, and did indeed
indicate at the hearing that he
was not opposing the grant of
certiorari.
Now from the reliefs set out in
the petition at the Bolgatanga
High Court, it is evidently
clear that the Petitioner was
challenging the validity of the
election of Madam Hawa Yakubu,
and even sought an injunction to
prevent her from taking her seat
in Parliament. Such a petition
is an election petition within
the intendment of Article
99(1)(a) of the 1992
Constitution and Section 16 of
PNDCL 284.
Sections 16, 17, and 18 of PNDCL
284 regulate the presentation of
an election petition, while
Sections 19, 20, 21, 22 and 23
deal with the handling of an
election petition by the High
Court.
Section 16 gives the High Court,
an exclusive original
jurisdiction in election
petitions. Section 17 sets out
those who are competent to
present an election petition in
the following words:
(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.
Section 18(1) which regulates
the time within which an
election petition should be
presented, provides:
"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 by the person
whose election is questioned or
to have been made on his behalf
to his knowledge, may be
presented within twenty-one days
after the date of the alleged
payment".
The language of Section 18(1) 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 Gazette publication of the
results of the disputed
election.
Section 18(2) requires that in
both situations above, the
Petitioner is to deposit ¢20,000
as security for costs within
that twenty-one days period.
Finally Section 18(3)
unambiguously provides that the
twenty-one days time limit shall
not be extended. This means that
the High Court has no power, not
even under Order 64 rule 6 of LN
140A, to grant an extension of
time in respect of this
twenty-one days time limit.
In sum, the following may be
deduced as the essential
requirements of an election
petition. First, it may be filed
by one or more of the persons
set out in Section 17 of PNDCL
284. Second, the High Court is
the only court with original
jurisdiction in the
determination of the petition.
Third, if the petition alleges
corrupt practice in which money
or other award is alleged to
have been paid, then it must be
filed within twenty-one days
after the date of the alleged
payment. In all other
situations, the petition must be
filed within twenty-one days
after the date of the Gazette
publication of the results of
the disputed election. Fourth,
the Petitioner must deposit
¢20,000 as security for cost
within the twenty-one days time
limit. And it must be noted that
the twenty-one days time limit
within which the petition must
be filed cannot be extended. See
Yeboah vrs. Mensah (J.H)
(1998-99) SCGLR 492 AT 538-539.
In the instant case, no
allegation of corrupt practice
by any of the Respondents was
alleged in the petition of Madam
Hajia Fati Seidu. Neither was
there any mention of payment of
money or other award by any of
the Respondents or anyone on
their behalf. That petition
therefore fails within those
required to be filed within
twenty-one days after the date
of the Gazette publication of
the results of the disputed
election. The Gazette
publication of the results of
the parliamentary election of
Bawku Central Constituency was
made on the 5th January, 2001.
As to when this election
petition was filed at the
Bolgatanga High Court, the
Applicant in his statement of
case stated that it was filed on
28th December, 2000. But in the
Notice of Discontinuance filed
at the Bolgatanga High Court, it
was stated therein that the
petition was filed on 15th
December, 2000. Indeed the
Notice of Discontinuance itself
was filed on 28th December,
2000. Now whether the petition
was filed on 15th or 28th
December, 2000, the undisputed
fact is that the petition was
filed before the 5th January,
2001.
Consequently the contention that
the petition is premature is
valid. There must certainly be
sound policy considerations
underlying the need to mount
election petitions only after
the Gazette publication of the
results of the election in cases
where no corrupt practices are
alleged. The period before the
publication of the results may
be used by dissatisfied
candidates or their agents to
seek amicable resolution of
their complaints with the
Electoral Commission. If the
complaint relates to the
counting of the votes, they can
ask for recounting. And indeed
regulation 37(3) of the Public
Elections Regulations 1996
(C.I.15) provides:
"37(3) A candidate or his
counting agent may, if present
when the counting of the votes
is completed, require the
Presiding Officer to have the
votes recounted or again
recounted, but the Presiding
Officer may refuse to perform
the second recount if, in his
opinion, the request is
unreasonable and report such
request to the Returning Officer
who shall recount the ballots
for that polling station only at
the constituency centre".
Finally the contention that the
proceedings and order of 6th
January 2001 were made in
violation of the audi alteram
partem rule is certainly
indefensible. Madam Hawa Yakubu
was the NPP Parliamentary
candidate in the disputed
election. The petition sought
not only a recount of the votes
but also an order to restrain
her from holding herself out as
the duly elected Member of
Parliament for Bawku Central
Constituency. On the facts and
in the face of the reliefs
claimed in the petition, if even
she was not made a party in the
petition, the High Court itself
on its own motion, has authority
to join her in the petition for
an effectual and complete
determination of the matters in
controversy. For Order 15 rule
6(2)(b) of L.I.1129 provides:
"6(2) At any stage of the
proceedings the Court may on
such terms as it thinks just and
either of its own motion or on
application
(b) order any person who ought
to have been joined as a party,
or whose presence before the
Court is necessary to ensure
that all matters in dispute in
the proceedings may be
effectually and completely
determined and adjudicated upon,
to be added as a party”.
In the instant case, although
the Court granted the
discontinuance against Madam
Hawa Yakubu, yet the Court in
its order of 6th January, 2001,
directed that Madam, Hawa
Yakubu’s representatives or
agents take part in the physical
counting of the votes. The
order reads, in part:
“…two representatives each of
the NDC and the NPP to proceed
further to take a physical count
of all the valid votes cast
respectively for the NDC and NPP
candidates”.
But the NPP candidate (that is
Madam Hawa Yakubu) whose votes
were to be recounted was not
given the opportunity to be
heard nor even to be present at
the venue for the recounting.
Indeed the order threatened
punishment for anyone who gets
nearer the venue of the
recounting. Such an order
cannot certainly be permitted to
stand.
It is for the above reasons that
we granted the Applicant’s
prayer and quashed the
proceedings and order of the 6th
January, 2001.
E. K. WIREDU
ACTING CHIEF JUSTICE
E. D. K. ADJEBENG
JUSTICE OF THE SUPREME COURT
G. K. ACQUAH
JUSTICE OF THE SUPREME COURT
W. A. ATUGUBA
JUSTICE OF THE SUPREME COURT
S. A. B. AKUFFO (MS)
JUSTICE OF THE SUPREME COURT
G. L. LAMPTEY
JUSTICE OF THE SUPREME COURT
T. K. ADZOE
JUSTICE OF THE SUPREME COURT
COUNSEL
Nana Akufo Addo with Mr. Philip
Addison and Miss Yvonne Osei
Gyau for Applicant
Mr. Kwaku Baah with Mr. James B.
Kaba for 2nd Respondent.
Mr. Lynes Quashie Idun for
Electoral Commission |
