IN THE SUPREME COURT by t12GWHOt

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									                 IN THE SUPERIOR COURT OF JUDICATURE
                         IN THE SUPREME COURT
                              ACCRA-GHANA

                    CORAM:     ATUGUBA, JSC
                               ANSAH, JSC
                               OWUSU (MS), JSC
                               DOTSE, JSC
                               BAFFOE-BONNIE, JSC

                                                        CIVIL MOTION
                                                         NO.J5/23/2009
                                                        15TH JULY,2009.

THE REPUBLIC
VRS
HIGH COURT, KOFORIDUA                }      RESPONDENT

EX PARTE: DR KOFI ASARE              }      APPLICANT

AND

      1. BABA JAMAL MOHAMMED AHMED
      2. MR SAMUEL ABROKWA                  1ST INTERESTED PARTIES
      3. MR BASIL AHIABLE

AND

THE ELECTORAL COMMISSION
NO 8, 8TH AVENUE RIDGE
ACCRA.                                2ND INTERESTED PARTY
____________________________________________________________




                              RULING


ATUGUBA,JSC:


The Applicant was the New Patriotic Party Parliamentary candidate for the
Akwatia constituency in the Eastern Region in the December 2008
Parliamentary Elections.




                                                                       1
The 1st set of interested parties were also the National Democratic Congress
and Independent Parliamentary candidates in the said election. Before the
results could be declared, the latter, alleging various malpractices, such as
destruction of some ballot boxes, the exclusion of their polling agents from
certain polling stations, excessive voting in some others, etc issued a writ at
the Koforidua High Court on 22/12/2008 against the 2nd interested party
praying for a rerun of the said election.
The applicant upon being joined as a second defendant to the said suit on
23rd January 2009 moved the court presided over by Suurbaareh J to strike
out the writ on the grounds of jurisdiction but the motion was dismissed.
Hence the present application to this court “for an order of certiorari to
quash the ruling of the High Court, Koforidua presided over by His
Lordship Justice G.S.Suurbaareh J dated 20/2/2009 …The grounds
for the application are as follows:
       i.     Wrongful assumption of jurisdiction/Lack of jurisdiction
       ii.    Error of law on the face of the record”


The essence of the application is that the said action at the High Court,
Koforidua, was an election petition which was premature since the election
results had not been declared and gazetted as required by article 99 and
other electoral legislation.
What is an election petition?
The question what is an election petition has been answered by this court in
the Republic vs. High Court Judge, Sunyani, Ex parte Alhaji Collins
Dauda CM J5/12/2009 dated 8/4/2009, unreported. In that case this court
per Dr Date-Bah JSC stated thus:
       ‘The Law
       It is clear from the language of section 18 of the Representation of the
       People Law 1992 that an election petition may not be presented
       before the results of the election concerned have been
       declared by the Electoral Commission and, in some cases
       gazetted. Where the petition is based on an allegation of corrupt


                                                                             2
practice and specifically alleges a payment of money or other award on
behalf of the “person whose election is questioned”, the petitioner
need not wait till the publication in the Gazette of the election result.
Rather, he or she may bring the election petition within twenty-one
days after the date of the alleged payment. It is this provision which
has probably misled the interested party in this case into presenting his
election before the High Court. We say misled because the time limit of
twenty-one days, if not read in its context, could be interpreted literally
to mean that the petitioner can bring his petition within 21 days of the
alleged corrupt practice, whether or not the election result has been
declared. This is in fact the interpretation that the interested party has
urged on this court quoted from his Statement of Case. The obstacle to
this interpretation is the expression “the person whose election is
questioned” in section 18(1). This expression has to be
construed, in its context, as logically implying that an election
must have taken place and its results declared by the Electoral
Commission. Otherwise, there would be no person whose
election is being questioned. Accordingly, we have to treat with
caution the obiter dictum of our respected departed brother, Acquah
JSC, as he then was, in Republic v High Court, Bolgatanga and
Anor; ex parte Hawa Yakubu [2001-2002] 1 GLR 311 at p.316
where he said:
       “The language of section 18(1) of PNDCL 284 is very clear. If
       the basis of the petition is that of corrupt practice in which
       money or other award is alleged to have been paid, then the
       petition should be presented within twenty-one days after the
       date of the alleged payment. In all other situations, the election
       petition is to be filed within twenty-one days after the date of
       the Gazette publication of the results of the disputed election.”
To the extent that our learned brother did not advert his mind
to the construction of the expression “the person whose
election is questioned”, this obiter dictum is with the greatest


                                                                           3
       respect, per incuriam and should not be followed by this court.
       A necessary implication from that expression, as already
       noted, is that a person must have been declared elected. One
       can hardly question the election of a person before that
       person has been declared elected.’


Much reliance has been placed on the definition of election in section 50 of
PNDCL 284. It is entitled “Interpretation” and provides thus: “In this act,
unless the context otherwise requires…’Election’ means an election held
to determine the members of Parliament’ The first observation is that
this definition is subject to its context. Clearly the object of the election as
therein stated is that it is “held to determine the members of Parliament.”
Therefore an election which does not effectuate that object or purpose by
determining who the members of parliament are is not the kind of election
envisaged by this definition. And that determination can only be made by
disclosing who have been elected as members of Parliament. Section 1(1) of
the Act provides as follows:

       (1) Ghana shall be divided into as many constituencies for the purpose
           of election of members of Parliament as the Interim National
           Electoral Commission, in this Law referred to as "the Commission",
           shall by legislative instrument prescribe.

It is clear that this section relates to the general election throughout the
country since it is only that election that produces “members of
Parliament” and not a member of Parliament. It is quite clear however that
the preceding sections 16-23 that govern election petitions are all concerned
with a particular election in a particular constituency and in respect of an
elected person. This is particularly clear from section 22 which provides as
follows:

       ‘(1) At the conclusion of the hearing of an election petition the High
       Court shall certify its decision to the Commission which shall request


                                                                              4
      the return by the returning officer in respect of the election to
      which the petition relates to be confirmed or altered
      accordingly.

      (2) Where the decision certified by the High Court under subsection (1)
          is to the effect that the election to which the petition relates is void,
          a writ shall be issued for a fresh election in the constituency
          concerned.’

The returning officer’s return referred to in s.22(1) is a return which shows,
inter alia, the person who has been elected to Parliament.

Thus whether the word ‘election’ relates to a general or specific election, it
clearly relates to some person or persons who has or have been elected. In
any case as Amissah J.A. pointed out in Ashong v Ashong (1967) GLR 135
C.A. at 142 (Ollennu and Lassey, JJA concurring),

      ‘I cannot see how the interpretation given to expressions,
      when and where they appear, can by itself exclude any rights
      conferred on individuals by the Matrimonial Causes Act of
      1950 or by any other Act passed after 1937. (See in this context
      the case of Jobbins v. Middlesex County Council [1949] 1 K.B. 142 at
      pp. 160 and 163, C.A. where both Scott and Wrottesley L.JJ. pointed
      out that a definition section ought to be construed as not
      cutting down the enacting provisions of an Act unless there is
      absolutely        clear     language        having       the      opposite
      effect.)’(Emphasis supplied)

I therefore do not see anything in section 50 of the Law that can detract from
the interpretation of an election as given by this court in the Collins Dauda
case, supra.

It is also trite law that statutory provisions in pari materia must be taken
and construed together. Therefore if the definition of ‘election’ in section 50



                                                                                 5
of the Law is ambiguous one simply reads it with article 93(1) of the
Constitution which provides that the persons who should be members of
parliament are “elected members.” Clearly then the definition relates to a
person or persons who have or has been elected member(s) of Parliament.

It is clear from this that the present action is certainly not an election petition.
Jurisdiction of the Courts over the electoral process before
declaration of results.
The applicants’ contention that the courts have no jurisdiction over the
parliamentary electoral process until the results thereof are declared and
gazetted was rejected by this court in New Patriotic Party vs. National
Democratic Congress and Others [2000] SCGLR 461. The legal position
on the matter is summarised in the Head note to that decision as follows:
       ‘(3) Per Bamford-Addo JSC. A challenged nomination of a
       Member of Parliament for election on the ground of
       ineligibility, as in the instant case, could be brought up only in
       an election petition after an election, not before, at the High
       Court. Consequently, an action such as in the instant case, for
       enforcement of article 94(3) (b), could not be brought in the Supreme
       Court in exercise of its original jurisdiction.
       Contra per Ampiah JSC. Since the High Court has exclusive
       jurisdiction in determining election petitions and the instant
       action is not an election petition, where should an aggrieved
       person or complainant go? Must he wait while the third
       defendant continues with the alleged offending activities,
       assuming the latter’s conduct is unlawful?...It is my considered
       opinion, that in the particular circumstances of this matter, the
       only court to determine the issues raised is the Supreme
       Court.
       Contra (per Kpegah JSC). I agree with the submission of counsel
       for the plaintiff, that article 94(3) (b), and for that matter, the
       other provisions of article 94 fall within our enforcement



                                                                                   6
      jurisdiction under articles 2(1) (b) and 130(1) (a) of the
      Constitution and that the plaintiff’s writ is cognizable only by
      this court. It follows in my humble view, that for the legislature to
      directly or indirectly cede part of this jurisdiction and vest same in any
      other court, [i.e. the High Court] would mean that it has exceeded the
      constitutional limitation imposed on its legislative authority.
      Contra (per Acquah JSC). In the instant case, the plaintiff’s
      complaint relates to an alleged violation of article 94(3) (b) of the 1992
      Constitution. And … the procedure provided in article 99(1) (a) of the
      Constitution and section 16 of the Representation of the People Law,
      1992 (PNDCL 284), is inapplicable to the determination of this
      complaint. Since the only procedure available for vindicating
      that right is an enforcement action under articles 2(1) (b) and
      130(1) (a) of the Constitution, the plaintiff is entitled to adopt this
      procedure. Otherwise, the plaintiff would be denied access to court.
      Contra (per Atuguba JSC). The plaintiff’s case here is for the
      enforcement of article 94(3) which he says the defendant has
      infringed; and is squarely within the purview of this court’s
      jurisdiction    under      articles   2(1)   (b)    and    130    of   the
      Constitution.’ (Emphasis supplied).
This decision was followed in the Republic vs. High Court Judge
Sunyani, ex parte Alhaji Collins Dauda supra. Indeed this has all along
been the legal position
Accordingly in Nyame v Mensah (1980) GLR 338 the defendant was
restrained from contesting the Sunyani constituency Parliamentary election,
Hayfron J ordering as follows:

      ‘In view of the findings I have made and to prevent the mischief which
      the S.M.C.D. 216 and S.M.C.D. 224 seek to prohibit, I order that the
      Electoral Commissioner shall delete from the list of candidates
      for election in the Sunyani Constituency in respect of the




                                                                               7
       forthcoming elections the name of Mr.                      Joseph   Henry
       Mensah.’(Emphasis supplied).



Similarly in Ekwam v. Pianim (No.2) (1996-97) SCGLR120 this Court held
that the defendant was disqualified from contesting the Presidential elections,
ahead of those eletions.
Again in Apaloo v Electoral Commission of Ghana (2001-2002) SCGLR 1
this court held that the Electoral Commission could not implement its electoral
directives concerning voter identification on the eve of the 2000 presidential
and parliamentary elections since those directives were not covered by
constitutional instrument under article 51 of the constitution.
The Constitutional Order of Ghana.
I desire to emphasise that the constitution of Ghana is supreme over all
people and institutions in Ghana, including the courts themselves. This is
clearly emphasised in several articles of the constitution, particularly articles
1, 11(6), 125 (1) (5), 127 (1). They are as follows:
Article 1

       ‘(1) The Sovereignty of Ghana resides in the people of Ghana in
       whose name and for whose welfare the powers of government are
       to be exercised in the manner and within the limits laid down
       in this Constitution.

       (2) The Constitution shall be the supreme law of Ghana and any
       other law found to be inconsistent with any provision of this
       Constitution shall, to the extent of the inconsistency, be void.’

Article 11

       (6)The existing law shall be construed with any modifications,
       adaptations, qualifications and exceptions necessary to bring it
       into conformity with the provisions of this Constitution, or otherwise to




                                                                               8
       give effect to, or enable effect to be given to, any changes
       effected by this Constitution.

Article 125

       ‘(1)Justice emanates from the people and shall be administered in the
       name of the Republic by the Judiciary which shall be independent
       and subject only to this Constitution.

              X   X   X    X    X     X    X

       (5) The Judiciary shall have jurisdiction in all matters civil and criminal,
       including matters relating to this Constitution, and such other
       jurisdiction as Parliament may, by law, confer on it.’

Article 127

       ‘(1) In the exercise of the judicial power of Ghana, the
       Judiciary, in both its judicial and administrative functions, including
       financial administration, is subject only to this Constitution and
       shall not be subject to the control or direction of any person or
       authority.’

These latter provisions sum it all in relation to the judiciary.

Some limitations on the jurisdiction and powers of the courts and other
institutions and persons are stated very explicitly by the constitution but
others are implicit and deducible from its framework. The need to carefully
observe these limits so as to enable the constitutional order as crafted by the
constitution to operate smoothly, has been detected and stressed from time
to time by this court. Thus in the celebrated case of Tuffuor v Attorney-
General (1980) GLR 634 C.A. (sitting as the Supreme Court) at 647-648,
Sowah JSC as he then was, delivering the judgment of the court stated
eternally thus:




                                                                                 9
      ‘A written Constitution such as ours is not an ordinary Act of
      Parliament. It embodies the will of a people. It also mirrors
      their history. Account, therefore, needs to be taken of it as a
      landmark in a people's search for progress. It contains within
      it their aspirations and their hopes for a better and fuller life.

      The Constitution has its letter of the law. Equally, the Constitution
      has its spirit. It is the fountain-head for the authority which
      each of the three arms of government possesses and
      exercises. It is a source of strength. It is a source of power.
      The executive, the legislature and the judiciary are created by
      the    Constitution.    Their    authority    is   derived    from    the
      Constitution. Their sustenance is derived from the Constitution. Its
      methods of alteration are specified. In our peculiar circumstances,
      these methods require the involvement of the whole body politic of
      Ghana. Its language, therefore, must be considered as if it were a
      living organism capable of growth and development. Indeed, it is a
      living organism capable of growth and development, as the
      body politic of Ghana itself is capable of growth and
      development. A broad and liberal spirit is required for its
      interpretation. It does not admit of a narrow interpretation. A
      doctrinaire approach to interpretation would not do. We must take
      account of its principles and bring that consideration to bear,
      in bringing it into conformity with the needs of the time.

      And so we must take cognisance of the age-old fundamental principle
      of constitutional construction which gives effect to the intent of the
      framers of this organic law.’(Emphasis supplied)

This polar star of our constitutional interpretation was elaborated upon by this
court in National Media Commission v. Attorney-General (2000) SCGLR
1 when at p.11 it stated per Acquah JSC (as he then was) thus:




                                                                             10
        ‘But to begin with, it is important to remind ourselves that we
        are dealing with our national Constitution, not an ordinary Act
        of Parliament. It is a document that expresses our sovereign
        will and embodies our soul. It creates authorities and vests
        certain powers in them. It gives certain rights to persons as
        well as bodies of persons, and imposes obligations as much as
        it confers privileges and powers. All these duties, obligations,
        powers, privileges and rights must be exercised and enforced not
        only in accordance with the letter, but also with the spirit, of
        the Constitution. Accordingly, in interpreting the Constitution,
        care must be taken to ensure that all the provisions work
        together as parts of a functioning whole. The parts must fit
        together logically to forma rational, internally consistent
        framework. And because the framework has a purpose, the
        parts are also to work dynamically, each contributing towards
        accomplishing    the   intended    goal. Each      provision   must
        therefore be capable of operating without coming into conflict
        with any other’.(Emphasis supplied)
Accordingly, when the position of the Chief Justice of Ghana, the head of the
Judiciary, was rocked by a purported parliamentary vetting, this court in
Tuffuor v Attorney-General, supra, went as far as stating at 649-650
thus:

        ‘The Constitution confers on every citizen of Ghana by article 1 (3):
        "the right to resist any person or persons seeking to abolish
        the constitutional order as established by this Constitution
        should no other remedy be possible." This means that every
        citizen of Ghana has the right, constitutional or otherwise, to
        see to it that the constitutional order as established by the
        Constitution is not abolished or sought to be abolished. One
        method, by which it could be determined whether a person is
        seeking to abolish the constitutional order, is to seek for an



                                                                          11
       interpretation of the Constitution as to the meaning or the
       effect   of   a   particular    provision     or   provisions     of   the
       Constitution. In such a case, in essence, there would neither be a
       defendant nor a plaintiff—properly so called, as the terms are
       commonly employed in ordinary proceedings in these courts.’



Also, although Article 130(1) of the Constitution would seem to give this court
exclusive jurisdiction in all matters concerning the enforcement and
interpretation of the constitution subject only to the High Court’s enforcement
jurisdiction over the fundamental human rights, this Court deductively, held
in Yeboah v J.H.Mensah [1998-1999] SCGLR 492 that this court has no
jurisdiction over questions as to the validity of a Parliamentary election and
that it is the High Court that is clothed with that jurisdiction. It is also trite
learning that this court has further deduced from the framework of the
constitution that, save the appellate jurisdiction of the Supreme Court, the
ordinary courts do not have original and appellate jurisdiction in Chieftaincy
matters. See Adumua II and Others v Adu Twum II (2000) SCGLR 165,
etc.

Likewise this court in J.H.Mensah v Attorney-General (1996-97) SCGLR
320 deduced from the governmental framework of the constitution that
ministerial tenure of office must cease with the expiry of the term of office of
the president who appointed them,         unless reappointed according to the
constitutional procedures.

Recently this court, in Republic v High Court, Accra,Ex parte Attorney-
General (Titriku &Other interested Parties)(2007-2008) 2 SCGLR 665,
preserving the constitutional framework of government, held that despite the
wide nature of the High Court’s jurisdiction, it should be limited by the
constitutional executive and legislative terrain. This court accordingly struck
out the action which sought to impugn the manner in which two district




                                                                               12
assemblies had been created such that a tribe had been split up between the
said two districts which contained some other tribes.

Limits to the Courts’ Jurisdiction in Electoral Matters

In the same vein the courts have no right to exercise their jurisdiction in
electoral matters in such a manner and circumstances as will run counter to
the due existence, role and operation of other institutions.

In the same vein, therefore, since the constitution has ordained that this
country should be governed mainly by the Executive, Legislature and the
Judiciary, the courts ought not to exercise their jurisdiction in such a way that
when the terms of office of the Executive and Legislature expire, their
succession is suffocated unduly by litigation. To allow that to happen is to
breach, rock, impair or at least suspend the constitutional order, which no
person or institution has power to do.

Indeed in Tehn-Addy v Electoral Commission (1996-97) SCGLR 589 this
court held strongly that not even the pendency of court proceedings could
justify the Electoral Commission’s refusal to register the plaintiff as a voter in
presidential and parliamentary elections. The facts of this case as set out in
the head note are, as far as relevant to this judgment, as follows:

       ‘The plaintiff, a 57 year old Ghanaian citizen, was unavoidably
       outside the country between May and November 1995. He was
       thus unable to register as a voter in October 1995 when the
       Electoral Commission embarked on a compilation of a register of voters
       for the 1996 Presidential and Parliamentary Elections. After his return
       to Ghana, the plaintiff applied on 15 April 1996 to the commission for
       re-registration as a voter but he received no response from the
       commission. However, the plaintiff subsequently presented
       himself for registration (during a registration exercise which
       was to be conducted by the commission between 1-9 June
       1996) but the commission failed or refused to register him.


                                                                               13
       The plaintiff therefore brought the instant action in the Supreme Court
       –invoking its original jurisdiction- for, inter alia, a declaration that the
       conduct of the commission in failing or refusing to register
       him as a voter was inconsistent with and in contravention of
       articles 42, 45 and 46 of the 1992 Constitution’(emphasis
       supplied).

The defence of the Electoral Commission is set out at pp. 592-593 of the
report as follows:

       ‘“5 The first defendant says that just as it was ready to carry
       out the supplementary registration it was served with a writ
       of the High Court No MISC 915/96 in the suit entitled:

              1. The New Patriotic Party
              2. The Peoples Convention Party

                                 V

              The Electoral Commission

       6. The writ asked for:

              (i) A declaration that the purported compilation by the
              defendant of a supplementary register of voters from 1-
              9 June 1996 is illegal, being in violation of the applicable
              law, the Public Elections (Registration of Voters)
              Regulations, 1995 (CI 12), specifically section 26
              thereof,     and    is    therefore     null    and     void    and
              unenforceable.

              (ii) An injunction restraining the defendant, whether by itself,
              agents, servants or officers from compiling a supplementary
              register of voters from 1-9 June 1996 or at any other




                                                                                14
             time thereafter which is inconsistent with the provisions
             of CI 12.

      7. The first defendant says that having been served with the writ
         it was under obligation to suspend the supplementary
         registration until the matter was disposed of by the court
         one way or the other.
      8. The first defendant says that its decision to exercise its function in
         carrying out a supplementary registration is protected by the
         independence guaranteed it by the Constitution, 1992 and that it
         has the authority of the Constitution to specify a period of
         registration of voters outside a general revision of the register.
      9. The first defendant further says that its suspension of the
         supplementary registration exercise is solely due to the
         action pending before the High Court and not that it has
         not got the authority so to do.
      10. The first defendant says it is entitled by law to designate a period
         within which such registration of voters is carried out. The plaintiff
         will be eligible for registration when the commission designates a
         period for the registering of eligible voters.”’(Emphasis supplied)

This Court in response stoutly stated at 594-596 per Acquah JSC thus:

      ‘Whatever be the philosophical thought on the right to vote, article 42
      of the 1992 Constitution of Ghana makes the right to vote a
      constitutional right conferred on every sane Ghanaian citizen of
      eighteen years and above. The article reads:

             “42 Every citizen of Ghana of eighteen years of age or above
             and of sound mind has the right to vote and is entitled to be
             registered as a voter for the purposes of public elections and
             referenda”




                                                                               15
As a constitutional right therefore, no qualified citizen can be
denied of it, since the Constitution is the supreme law of the
land.

Article 45 entrusts the initiation, conduct and the whole electoral
process on the Electoral Commission and article 46 guarantees the
independence of the commission in the performance of its task. A
heavy responsibility is therefore entrusted to the Electoral
Commission under article 45 of the Constitution n ensuring
the exercise of this constitutional right to vote. For in the
exercise of this right, the citizen is able not only to influence
the outcome of        elections and therefore the choice of a
government but also he is in a position to help influence the
course of social, economic and political affairs thereafter. He
indeed becomes involved in the decision-making process at all
levels of governance.

In the preamble to the 1992 Constitution, the people of
Ghana, in the exercise of their “natural and inalienable right to
establish a framework of government” namely, a viable
democratic government, solemnly declared and affirmed their
commitment, inter alia, to: “The principle that all powers of
Government spring from the Sovereign Will of the People; the
Principle of Universal Suffrage…” Accordingly article 1(1) of the
Constitution strikes the keynote when it provides:

        “The Sovereignty of Ghana resides in the people of
        Ghana in whose name and for whose welfare the powers
        of government are to be exercised in the manner and
        within the limits laid down in this constitution.”

And in order to give meaning and content to the exercise of this
sovereign power by the people of Ghana, article 42 guarantees the



                                                                16
      right to vote to every sane citizen of eighteen years and above. The
      exercise of this right of voting, is therefore indispensable in
      the enhancement of the democratic process, and cannot be
      denied in the absence of a constitutional provision to that
      effect.

      In the instant case, the first defendant, whilst admitting that the
      plaintiff is qualified and entitled to be registered, nevertheless
      contends that because of the High Court action by the two
      said political parties, it suspended the registration exercise.
      Looking at the timetable for the 1996 Presidential and
      Parliamentary elections, and further on the balance of
      hardship, the plaintiff and other qualified unregistered citizens
      as opposed to the political parties in the High Court suit, stand
      to be deprived of their voting rights on the election day. We
      therefore realised that it would be unfair to deny the plaintiff
      and the unregistered citizens such a constitutional right…’

      It was for those reasons that this court, as stated at 590-591, on 26
      July   1996   ‘ordered   the   Electoral   Commission,      the   first
      defendant, to register the plaintiff and all those who in the
      exercise of the commission’s discretion are qualified to be
      registered in terms of the provisions of Public Elections
      (Registration of Voters) Regulations, 1995 (CI12).’ (Emphasis
      supplied).

Even when a matter is within the jurisdiction of the Supreme Court itself it
takes care not to exercise it in such a way that the constitutional order may
be breached, hindered or otherwise prejudiced. Thus in New Patriotic Party
v Attorney-General (1993-94) 2GLR 35 SC, the action sought to invalidate
the observance of 31st December (the day of the overthrow of the Limann
government) as a public holiday financed with public funds. It was
commenced on 21st December and prayed for an interim injunction. The


                                                                          17
constitutional dilemma which this action posed and how it was overcome by
this court was explained by Adade JSC at 57 thus:

       ‘The application was put before a five-member panel of this court on
       Thursday, 23 December 1993. It became obvious to the panel that a
       ruling either way was bound to undermine the fate of the
       substantive suit. Besides, granting or refusing the application
       to await the hearing of the main case after 31 December 1993,
       sometime in the new year, would be tantamount to shutting
       the stable door after the horse had fled. The court decided
       therefore that in the circumstances, the justice of the case
       required that the substantive suit be heard as a matter of
       urgency prior to 31 December 1993. The application for injunction
       was adjourned to be taken together with the substantive suit. The
       action was eventually heard on 29 December 1993, and a
       decision pronounced in favour of the plaintiff. But we reserved
       our reasons.’

Again in Apaloo v Electoral Commission (2001-2002) 2GLR 372 SC the
plaintiff issued his writ on 29th November 2000 claiming inter alia

       ‘(2) An order of perpetual injunction restraining the defendant by itself,
       its servants and agents from enforcing the defendant’s ‘No photo ID
       Card No Vote Directives’ or the directives contained in the Gazette
       Notice dated 27 November 2000 in respect of voters without a voter ID
       Card contained in the Electoral Commission’s Guide to Election Officials
       2000.

       (3) An order restraining the defendant by itself, its servants
       and agents from conducting the forthcoming presidential and
       parliamentary elections or any other election until the
       determination of the suit herein.’ (Emphasis supplied).




                                                                              18
As the elections were slated for 7th December 2000 this court overcame the
situation in the words of Bamford-Addo JSC at 377 thus:

              (1) ‘On 4 December 2000 this case was heard at the
                   Supreme      Court    which     delivered     a   unanimous
                   judgment on the same day but reserved the reasons,
                   to be given on 17 January 2001’. (Emphasis supplied).

In the present case however the writ was issued on 22/12/2008 aforesaid and
even if it were issued on 7/12/2008, i.e. on the election day itself the High
Court (Civil Procedure) Rules 2004, C.I. 47, regulating the institution and
course of actions are such that even if the court resorts to abridgment of time
under Order 80 rule 4 (a power that must be exercised judicially) the case
could never be concluded before 7th January 2009 when a new parliament
ought to be in place. Indeed this action if it is still to proceed might go on till
the end of this year for even pleadings have not yet been completed! As the
applicant points out in his statement of case dated 12/5/2009:

       ‘If the electoral process is allowed to be clogged by writs and
       applications for injunctions then our courts will be inundated with such
       writs and injunctions that the State cannot have the full compliment of
       parliament. Indeed, all kinds of frivolous writs and motions would be
       used as a tool to prevent the declaration of election results with
       serious consequences to our democracy’

Such a situation would seriously violate the constitutional order established by
articles 93(1), 112(4), 113 and 45(c), read subject to article 50(1)-(4). They
are as follows:

Article 93

       ‘(1)There shall be a Parliament of Ghana which shall consist of not
       less than one hundred and forty elected members.’




                                                                                19
Article 112

       ‘(4)Subject to clause (2) of article 113 of this Constitution, a general
       election of members of Parliament shall be held within thirty
       days before the expiration of the period specified in clause (1)
       of that article; and a session of Parliament shall be appointed to
       commence within fourteen days after the expiration of that
       period.’

Article 113

       ‘(1) Subject to clause (2) of this article, parliament shall continue
       for four years from the date of its first sitting and shall then stand
       dissolved.

       (2) At any time when Ghana is actually engaged in war,
       Parliament may, from time to time by resolution supported by the
       votes of not less than two-thirds of all the members of
       Parliament, extend the period of four years specified in clause (1) of
       this article for not more than twelve months at a time, except that the
       life of Parliament shall not be extended under this clause for
       more than four years.

       (3) Where, after a dissolution of Parliament but before the holding of a
       general election, the President is satisfied that owing to the existence
       of a state of war or of a state of public emergency in Ghana or any
       part of Ghana, it is necessary to recall Parliament, the President shall
       cause to be summoned the Parliament that has been dissolved to
       meet.

       (4) Unless the life of Parliament is extended under the provisions of
       clause (2) of this article, the general election of members of Parliament
       shall proceed and the Parliament that has been recalled shall, if not




                                                                             20
       sooner dissolved, again stand dissolved on the date appointed for the
       general election.’

Article 45(c)

       ‘The Electoral Commission shall have the following functions –

                to conduct and supervise all public elections and referenda;




Article 50(1)-(4)

                ‘(1) Subject to the provisions of this Constitution, where at the
                close of nominations and on the day before a public election -

                      (a) two or more candidates have been nominated, the
                      election shall be held and the candidate who receives the
                      largest number of votes cast shall be declared elected; or

                      (b) only one candidate is nominated, there shall be no
                      election and that candidate shall be declared elected.

                (2) Where for the purposes of a public election two or more
                candidates are nominated but at the close of the nominations
                and on the day before the election, only one candidate
                stands nominated, a further period of ten days shall be
                allowed for nomination of other candidates, and it shall
                not be lawful for any person nominated within that
                period of ten days to withdraw his nomination.

                (3) Where at the close of nominations under clause (2) of this
                article only one candidate stands nominated, there shall be no
                election and that candidate shall be declared elected.




                                                                                 21
             (4) Where at the close of nominations, but before the
             election, one of the candidates dies, a further period of
             ten days shall be allowed for nominations; and where
             the death occurs at any time within twenty-five days
             before the election, the election in that constituency or
             unit shall be postponed for twenty one days.’

These articles require that there should be a Parliament for Ghana with a 4
year term extendable in a state of war and even there the extension cannot
be for more than 4 years and that it is the Electoral Commissioner who has
the power to conduct the elections. The only exceptions to the constitutional
timetable for the parliamentary elections are as stated in article 50(1) to (4)
and article 113(2)-(4). Therefore, it is not open to a court or any body to
alter the same.

This is the principle which the Tehn-Addy case, supra teaches.

Besides, under article 1(1) the sovereignty of Ghana resides in the people of
Ghana and the right to elect those who should govern them, under our
constitution, is a very fundamental right of sovereignty. If even a state of war
cannot prevent parliamentary elections from taking place beyond a minimum
of 4 years, how can a court in time of peace stall that process? Clearly so to
do would be an excess of its jurisdiction over election matters. The
jurisdiction of the High Court under article 140(1) itself fears these and other
provisions of the constitution since it is expressly subject to them. It is as
follows:

             ‘(1) The High Court shall, subject to the provisions of this
             Constitution, have jurisdiction in all matters and in particular,
             in civil and criminal matters and such original, appellate and
             other jurisdiction as may be conferred on it by this Constitution
             or any other law.’




                                                                              22
Abuse of the Process

Notions of excess of jurisdiction apart, it is quite clear that for a court to allow
litigants to stall the constitutionally ordained electoral process would be an
abuse of the court’s process. Even in matters of ordinary litigation a court in
law cannot allow its process to be abused and is under a duty to stay, dismiss
or otherwise terminate such proceedings. This is trite law and should apply to
constitutional actions though with extreme caution. Thus in Bilson v Apaloo
(1981) GLR 24 at 48 Anin JSC delivering the majority judgment of the court
stated: “But neither the common law nor the constitution, 1979, permits a
person to abuse the legal process or else bring the administration of justice
into contempt”.

Quite clearly then the existence of jurisdiction is not always the conclusive
consideration by a court. A court is entitled to consider whether despite the
existence of the jurisdiction it would be just to exercise it or decline to
exercise it. Thus in Dahabieh v. S.A. Tarqui & Brothers (2001-2002) 1
GLR 171 SC, this court held that even though it is possible to mount an action
on a judgment for a debt if there is another procedure for achieving the same
purpose it would be an abuse of the process of the court to mount an action
for a debt under a judgment of a court. Clearly then since the High Courts
Civil Procedure Rules are such that the Court cannot dispose of the case
within the constitutional electoral time frame but the same action can be
brought after the declaration and gazetting of the results as the case may be,
by which time the institution of parliament as constitutionally established
would have been in place, but without prejudice to such an action, it would
be an abuse of the process of the court to entertain such an action.

                                   Conclusion

Though Mr Tony Lithur, counsel for the plaintiff, intelligently commenced his
action by writ since the results of the election had not yet even been
declared, thereby steering clear of the dreaded Bermuda triangle of a



                                                                                 23
premature petition as in the Collins Dauda case, and the subject-matter of
the action, founded on ordinary legislation and administrative impropriety is
prima facie within the High Court’s general jurisdiction under article 140(1) of
the Constitution, see Amidu v. Electoral Commission & Assembly Press
(2001-2002) SCGLR 595 and Amidu v President Kuffuor (2001-2002)
SCGLR 86, the court below proceeded per incuriam of the constitutional
provisions herein before set out. For all the foregoing reasons the application
succeeds.




                                                 W. A. ATUGUBA
                                           (JUSTICE OF THE SUPREME COURT)




ANSAH JSC:


This case raises one main critical issue for consideration. It is this:


Does the High Court have jurisdiction to entertain a writ of summons brought
before it to address an electoral irregularity in a Parliamentary election in
which the Electoral Commission has not declared a winner?


The Facts
This is a matter concerning the conduct of the 2008 parliamentary elections in
the Akwatia Constituency. On 22nd December 2008, the 1st interested parties
herein, Mr. Baba Jamal Mohammed Ahmed, Mr. Samuel Abrokwa and Mr.
Basil Ahiable issued a writ of summons against the Electoral Commission, the
2nd interested party, claiming declaratory and other reliefs. On the same day,
the 1st interested parties also filed a motion on notice for an interim injunction
to restrain the Electoral Commission from organizing the special and the


                                                                               24
general voting exercises in the constituency scheduled for 23 rd and 28th
December respectively, as part of the nationwide elections in 2008 the went
to the run-off stage. Following the above legal actions, voting was not
conducted for six polling stations in the Akwatia Constituency and as at now
the Electoral Commission has not declared a winner in the Akwatia
Parliamentary electoral exercise.


The applicant herein, who had applied and had been joined as the second
defendant in the action, filed an application challenging the competency of
the writ to initiate what, in his considered opinion, was an election petition.
The High Court, Koforidua, presided over by His Lordship Justice G. S.
Suurbaareh delivered a ruling on the application stating that a writ was
competent to commence the action and therefore the High Court was clothed
with jurisdiction to hear and determine the case. It is this ruling of the High
Court that the applicant is praying this Honourable Court to quash.


To help resolve the issue at stake, it is important to determine the proper
construction to be placed on the word ‘election’ (in order to know whether
what took place in the Akwatia Constituency can be said to be an election);
the legal effect of an incomplete election; what constitutes an action to
challenge the validity of a Parliamentary election; what remedies and
processes are available for addressing electoral irregularities, and other
considerations.


Meaning of “election”


According to section 16 (1) of PNDCL 284, the only method available for
questioning parliamentary elections is by petition. The section provides as
follows:


       “(1) The validity of an election to Parliament may be questioned
       only by a petition brought under this Part.


                                                                            25
The question is: what constitutes an ‘election’ to Parliament? To begin with, it
must be explained that the expression ‘election to Parliament’ can only mean
‘election of a person to Parliament’ for the purpose of such election is to
ensure that the constituency in question is duly represented in Parliament by
the person so elected as a Member of Parliament for that constituency.
Section 50 of Representation of the People Act, 1992 (PNDCL 284) [As
substituted by the Representation of the People (Amendment) Law, 1992
(PNDCL 296) s.(c)], which happens to be its Interpretation Section, defines
“election” to mean any public elections. This definition though useful, is not
helpful to resolve the issue at stake more so that the public nature of the
Parliamentary election in question is not in dispute in this case. In situations
such as this, the law requires of us to resort to external aids to interpretation
such as the dictionary.


The Black’s Law Dictionary (8th Edition) defines ‘election’ as the process
of selecting a person to occupy an office (usually a public office),
membership, award or other title or status.


It also defines the expression ‘electoral process’ as a method by which a
person is elected to public office.


It goes on to define the expression ‘primary election’ as a preliminary election
in which a political party’s registered voters nominate the candidate who will
run in the general election. Such elections are often called primaries.


Further, it defines the expression ‘by-election’ as an election specifically to fill
a vacant post. Also, section 50 of PNDCL 284 (as amended) defines the
expression ‘by-election’ to mean an election held to fill a vacancy occurring
otherwise than on the dissolution of Parliament.




                                                                                 26
One strand that is common to all the above definitions is that an election or
an electoral process should lead to the production of an eventual winner, by
whatever qualification called, be it a ‘Parliamentary election’, ‘by-election’, etc.


The law now is settled that an election within the meaning of PNDCL 284 is
that in which the Electoral Commission has, at least, declared a result. This
has been the position of the Supreme Court in the case of the Republic v. The
High Court, Sunyani; Ex parte Alhaji Collins Dauda [Suit No. J5/12/2009,
Unreported] wherein Dr. Date-Bah JSC, delivering the unanimous decision of
the Supreme Court, held at page 9 of the Judgment as follows:


       “Accordingly, our conclusion from reading the provisions of PNDCL 284
       together is that, even in the case of an allegation of a corrupt practice,
       an election petition may be brought only after the Electoral
       Commission has declared a result in relation to the election.”


The Court also stated that anything short of declaration of a result by the
Electoral Commission in the election will not qualify it as an election within the
meaning of PNDCL 284. The Court stated at page 8 of the Judgment as
follows:


       “…It can be cogently argued that an election whose results have not
       yet been declared is an inchoate or incomplete election, rather than an
       election…”


What this means is that an electoral exercise in which the Electoral
Commission has not declared a result in relation to it is an incomplete
(inchoate) election; and an incomplete election is not an election.


The import of Ex parte Alhaji Collins Dauda (supra) therefore is that ‘election’
means ‘complete election’ and a ‘complete election’ is one whose results have
been declared by the Electoral Commission.


                                                                                 27
The problem that may be envisaged under Ex parte Alhaji Collins Dauda
(supra) is a situation where the Electoral Commission has declared a result in
an electoral exercise but the result happens to be a tie or some other equality
situation. No eventual winner has been produced even though a result has
been declared.


This definitional problem envisaged under Ex parte Alhaji Collins Dauda
(supra) may be overcome by reading Regulation 40 of C.I. 15 (which deals
with Equality of Votes) and section 50 of PNDCL 284 (which is the
Interpretation Section of the Act). The combined effect of these two
provisions is that, the main purpose of an election is to produce an eventual
winner.


Thus, in the light of the above provisions and the import of Ex parte Alhaji
Collins Dauda (supra), for an election to be complete, there must be a
declaration by the Electoral Commission and that declaration must name an
eventual winner.


According to the Public Elections Regulations, 1996 (C.I. 15) however, the
processes that have to be carried out in a public election go beyond the point
of declaration of results. C.I. 15 prescribes the following two-staged
processes to be carried out in a Parliamentary election:


   a) The polling processes
   b) Processes after polling


The polling processes are captured under Part II of C.I. 15 and covers
Regulations 24- 35. These processes deal with matters such as balloting and
voting procedure.




                                                                            28
Processes after polling are captured under Part III of C.I. 15 and covers
Regulations 36-42. These processes deal with matters such as counting of
votes up the declaration and publication of election results.


Regulation 41(1) of C.I. 15 deals with the declaration of contested election
results and provides as follows:




       “(1) Subject to Regulation 40 of these Regulations, immediately
       after the results of the poll for all the stations in his
       constituency have been given to him, the returning officer shall,
       in the presence of the candidates or their representatives or not
       more than two counting agents appointed by each candidate—


           (a) assemble the results from the polling stations without
           recounting the ballots in the ballot boxes, except where
           there is a challenge by a candidate or counting agent in
           respect of a specific ballot box;


           (b) give public notice of the total number of votes cast for
           each candidate;


           (c) publicly declare to be elected in a parliamentary election
           the candidate to whom the most votes have been given;


           (d) endorse on the writ the name of the person elected; and


           (e) forward to the Commission the endorsed writ and a note
           of the total number of votes cast for each candidate.”


Regulation 41(2) of C.I. 15 deals with the publication of contested
election results and provides as follows:


                                                                            29
       “(2) On receipt of a writ endorsed in accordance with this
       regulation, the Commissioner shall—


             (a) in a parliamentary election publish in the Gazette a
             notice stating the name of the person elected and the total
             number of votes cast for each candidate; and


             (b) inform the Clerk of Parliament soon after that of the
             name of the candidate elected.”


The decision in Ex parte Alhaji Collins Dauda (supra) is to the effect that, in a
Parliamentary election, where the electoral processes have been substantively
carried out up to the point where a candidate has been declared elected [i.e.
up to the process in Regulation 41(1)(c) of C.I. 15], the election is complete
(and an election petition can be brought to challenge the validity of the
election).


It is implied from Ex parte Alhaji Collins Dauda (supra) that the subsequent
processes, namely the endorsement of the writ and its transmission to the
Electoral Commission as well as the publication in the Gazette and notification
to the Clerk of Parliament [i.e. the processes in Regulation 41(1)(d)(e) and
Regulation 41(2)(a)(b) of C.I. 15], are not necessary for the election to be
complete.


It can also be inferred from Ex parte Alhaji Collins Dauda (supra) that in a
Parliamentary election, the electoral processes up to the point that a
candidate is declared elected by the Electoral Commission go to the substance
of the election whereas the subsequent processes after such declaration are
for purposes of record and public notification and do not affect the substance
of the election. This inference is given credence by C.I. 15 itself. For instance,




                                                                               30
C.I. 15 prescribes that publication through some other mass communication
media may be substituted for Gazette publication.


Regulation 46 of C.I. 15 provides as follows:


       “Where any matter is provided in this instrument to be
       published in the Gazette, it may, in lieu of or in addition to the
       publication in the Gazette, be published through radio,
       television, the national newspapers or any other medium of
       mass communication.”


Thus, from the above legal and dictionary provisions and the import of Ex
parte Alhaji Collins Dauda (supra), ‘election’ means a complete public
election in which the Electoral Commission has, at least, publicly
declared a result which names a candidate as elected.


On the facts of this case, no one has been declared as elected by the
Electoral Commission in the Akwatia Parliamentary election. Thus, the Akwatia
Parliamentary electoral exercise that has taken place so far, it not being a
complete election, cannot be said to be an election. It is not an election yet.
At best, it can be described as an incomplete (inchoate) election.


The legal effect of an incomplete election


The High Court in the instant case stated at page 6 of its Ruling given on
20/02/2009 as follows:


       “…since the processes enumerated in Regulation 41 of the Public
       Elections Regulations, 1996 (C.I. 15) have not all taken place, it cannot
       be said that an election has in fact taken place in the Akwatia
       Constituency.”




                                                                             31
First, it must be noted that for a Parliamentary electoral exercise to qualify as
an election, it is not necessary that all the processes enumerated in
Regulation 41 of C.I. 15 must have taken place. It is enough if the processes
enumerated have taken place up to the point where the Electoral Commission
has declared someone as elected (see Ex parte Alhaji Collins Dauda supra).


Secondly, Ex parte Alhaji Collins Dauda (supra) does not say that an
incomplete election is a nullity. Some electoral exercise did, in fact, take place
in the Akwatia Constituency, only that it did not go into completion.


Also, it is to be noted that the Akwatia Parliamentary electoral exercise could
not go into completion because the Electoral Commission was served with
court processes as a result of which it halted the electoral exercise pending
the final determination of the case. The said electoral exercise can be
described as a ‘stalled election’. It is not a ‘null election’ neither can it be said
to be an ‘abortive election’. The said electoral exercise has life in it and it is
indeed capable of going into completion.


Action to challenge the validity of a Parliamentary election


In assuming jurisdiction, the High Court in the instant case stated at page 6
of its Ruling as follows:


       “…it is only when the action relates to the determination of the validity
       of the election of a person as a Member of Parliament after an election
       has taken place and the results declared and someone further declared
       winner or duly elected Member of Parliament for the particular
       constituency that one must proceed by a petition.”


The question that arises is: what is an ‘action to challenge the validity of a
Parliamentary election’?




                                                                                  32
Section 16 of PNDCL 284 gives the High Court jurisdiction to hear election
petitions to question the validity of Parliamentary elections.


Clause 1(a) of Article 99 of the 1992 Constitution provides that this
jurisdiction is for the High Court to hear and determine any question whether
a person has been validly elected as a Member of Parliament.


After such determination, section 19 of PNDCL 284 provides the releifs that
the High Court may give in the appropriate cases.


The Black’s Law Dictionary (supra) defines a valid action as that which is
legally sufficient, binding or meritorious.


By the combined effect of Clause 1(a) of Article 99 of the 1992 Constitution
and sections 16 & 19 of PNDCL 284, an action to challenge the validity of a
Parliamentary election is that which, if its merits are proven, is capable of
resulting in any of the reliefs under section 19 of PNDCL 284 being granted.


Counsel for the Plaintiffs/1st interested parties has argued that the reliefs
endorsed on the Plaintiffs’ writ of summons before the High Court, even
though they pertained to the Parliamentary election in the Akwatia
Constituency, were different from the reliefs that a petitioner in an election
petition would normally seek under section 19 of PNDCL 284. This, to him,
buttresses the validity of the writ to commence the action.


The High Court also held that the Plaintiffs’ complaints were not to challenge
the validity of the election of anybody as a Member of Parliament for the
Akwatia Constituency and as such a writ of summons was appropriate in such
a case.




                                                                               33
These arguments are not supported by the facts on record; neither are they
supported in law. The first claim of the Plaintiffs’ statement of claim endorsed
on the writ dated 27/01/2009 was in the following terms:


        “(a) A declaration that the general conduct of the Parliamentary
        election in the Akwatia Constituency was characterised by such
        extensive and pervasive electoral irregularity that they may reasonably
        be supposed to affect any declared outcome thereof.”


Clearly, these serious allegations, if proven on the merits, have the effect of
rendering the entire Parliamentary election in the Akwatia Constituency void
in accordance with section 19(a) of PNDCL 284. Such allegations go to the
validity of the election and as such any action taken in respect of such
allegations qualifies as an action to challenge the validity of a Parliamentary
election.


Also, the second claim of the Plaintiffs’ statement of claim was in the
following terms:


       “(b) An order directed at the defendant compelling it to conduct fresh
       Parliamentary elections for the whole of the Akwatia constituency.”


Again, within the meaning of section 19(a) of PNDCL 284, fresh elections may
be ordered only after previous elections have been declared invalid or void,
being a consequential order following such declaration. Thus, this claim of the
Plaintiffs also goes to qualify their action as one to challenge the validity of a
Parliamentary election.


Remedies and Processes for addressing electoral irregularities


These will be dealt with under the following sub-headings:




                                                                               34
   1) After a candidate has been declared a winner in a Parliamentary
       election.
   2) Before a candidate has been declared a winner in a Parliamentary
       election.
   3) Where the action is brought to address an electoral irregularity other
       than to challenge the validity of the Parliamentary election.


After a candidate has been declared a winner in a Parliamentary election


After a candidate has been declared a winner in a Parliamentary election, an
action may be brought to challenge the validity of the election (see Ex parte
Alhaji Collins Dauda supra). That action must be by way of a petition
instituted at the High Court. Section 16 of PNDCL 284 provides as follows:


       “(1) The validity of an election to Parliament may be questioned
       only by a petition brought under this Part.


       (2) Every election petition shall be presented before the High
       Court for hearing.”


Remedies available to a petitioner include a declaration that the entire
Parliamentary election is void (in which case the court may further order a
fresh election to be conducted) and a declaration that some candidate other
than the one declared elected by the Electoral Commission was duly elected.
Section 19 of PNDCL 284 deals with the reliefs that may be granted in an
election petition and provides as follows:


       “After the hearing of an election petition the High Court may
       make any of the following orders—


       (a) declare that the election to which the petition relates is void;




                                                                              35
       (b) declare that a candidate other than the member whose
       election is questioned was duly elected; or


       (c) dismiss the petition and declare that the member whose
       election is questioned was duly elected.”
Before a candidate has been declared a winner in a Parliamentary election


Counsel for the Plaintiffs/1st interested parties strongly contends in his
statement of case as follows:


       “…since there had been no declared winner to enable them file an
       election petition, they had no other option than to file a writ of
       summons at the High Court that has jurisdiction in all cases…”


Also, in assuming jurisdiction, the High Court in the instant case stated at
page 8 of its Ruling as follows:


       “Since the plaintiffs’ complaints are not seeking to challenge the
       validity of the election of anybody as a Member of Parliament for the
       Akwatia Constituency, as no one has been declared as such, but relate
       to certain breaches of the law by the Commission through its officers
       and the general conduct of the elections, the procedure by petition
       provided in Article 99(1)(a) and section 16 of PNDCL 284 are
       inapplicable and the only way opened to them to ventilate their
       grievances is to issue a writ of summons as in this case. To declare
       such a writ a nullity, merely because it relates to an election of a
       Member of Parliament, when it is clear that the processes for an
       election as contained in Regulation 41 of C.I. 15 have not been
       complied, will be denying the Plaintiffs access to the courts and an
       endorsement that the offending activities should be overlooked.”




                                                                            36
First of all, a wrong impression is being created by counsel that the High
Court has jurisdiction in all cases and this must be corrected. It is not the law
that the High Court has jurisdiction in all cases. The relevant provisions are as
below.


Subsection (1)(a) of section 15 of the Courts Act, 1993 (Act 459) (as
amended):


(1) The High Court shall, subject to the provisions of the Constitution,
have-
   (a) original jurisdiction in all matters and in particular, in civil and criminal
         matters [Emphasis is mine].”


Clause 1 of Article 140 of the 1992 Constitution:


         “The High Court shall, subject to the provisions of this
         Constitution, have jurisdiction in all matters and in particular,
         in civil and criminal matters and original, appellate and other
         jurisdiction as may be conferred on it by this Constitution or any
         other law [Emphasis is mine].”


Counsel appears to confuse the “general jurisdiction” of the High Court under
Article 140 of the 1992 Constitution and section 15(1)(a) of Act 459 which is
informed by the expression ‘jurisdiction in all matters’. Careful reading of the
said article reveals that the High Court’s general jurisdiction is made subject
to the provisions of the Constitution itself.


The Constitution limits the High Court’s general jurisdiction in many respects.
For instance, the High Court does not have jurisdiction to determine an
allegation that an enactment or any act or omission of any person is
inconsistent with the Constitution [Article 2(1) of the 1992 Constitution]. Also,
the High Court does not have jurisdiction to entertain petitions for challenging


                                                                                 37
the election of the President [Article 64(1) of the 1992 Constitution]. Again,
the High Court’s jurisdiction is completely ousted in all matters relating to the
enforcement or interpretation of the Constitution and in all matters as to
whether Parliament has acted in excess of its powers [Article 130(1) of the
1992 Constitution]. In all causes or matters relating to the production of
official documents in court, the High Court’s jurisdiction is again ousted under
Article 135(1) of the 1992 Constitution. Also, even though it has supervisory
jurisdiction in chieftaincy matters, the High Court has no original jurisdiction
in all causes or matters affecting chieftaincy [Articles 270-274 of the 1992
Constitution; section 57 of Act 459].


It is clear from the above few instances that the Constitution indeed places
limitations on the High Court’s general jurisdiction. It is for the purposes, inter
alia, of these limitations that Article 140(1) contains the important
qualification ‘subject to the provisions of this Constitution’, thereby subjecting
the jurisdiction of the High Court “in all matters” to the provisions of the
Constitution itself. Yes, the High Court has jurisdiction “in all matters”, but
this jurisdiction is subject to constitutional provisions such as the instances
specified above, in which the High Court’s jurisdiction is completely ousted. It
is the wrong view of the law that the High Court has jurisdiction in all cases.


Secondly, on the facts as per their statement of claim endorsed on their writ,
it cannot be said that the Plaintiffs were not seeking to challenge the validity
of the Parliamentary election in the Akwatia Constituency. Indeed, their claims
before the High Court, if proven, have the effect of invalidating the entire
Parliamentary election in the Akwatia Constituency and, as such, they should
have waited for the right initiating processes and remedies to ripen in
accordance with law.


It is important to note here that, the issuance of a writ in a Parliamentary
election is not the issue: it is what the writ is capable of doing. If for instance,
the Plaintiffs’ writ was for a defamatory action seeking declaratory and other


                                                                                 38
appropriate reliefs against the Electoral Commission in the course of the
conduct of its electoral functions, that would have been in order in
accordance with Order 2 rule 2 of the High Court (Civil) Procedure Rules,
2004 (C.I. 47), notwithstanding the Electoral Commission had not declared
someone as elected or otherwise completed its constitutional electoral
functions. In the instant case however, the Plaintiffs’ writ attacked the very
validity of the Akwatia Parliamentary election seeking declaratory and
injunctive reliefs. Because Order 2 rule 2 is made ‘subject to any existing
enactment to the contrary’, the Plaintiffs were required by law to have waited
for the Electoral Commission to, at least, declare someone as elected in
accordance with Article 46 of the 1992 Constitution and section 16 of PNDCL
284.


Section 16 of PNDCL 284 gives the High Court jurisdiction to entertain an
election petition to challenge the validity of a Parliamentary election. This
provision must be read together with clause 1(a) of Article 99 of the 1992
Constitution which provides as follows:


       “The High Court shall have jurisdiction to hear and determine any
       question whether-
          (a) a person has been validly elected as a member of Parliament or
             the seat of a member has become vacant.”


The Constitution makes a valid assumption that at the time the High Court
assumes jurisdiction, a person has already been elected in the relevant
Parliamentary election. Thus, by reading the two provisions together, the
High Court, in the exercise of its jurisdiction in this matter, is to determine
whether the person elected was validly elected or not. Therefore, where no
person has been elected in a Parliamentary election, assumption of
jurisdiction by the High Court in a matter relating to the validity of the
election can only be wrongful within the meaning of clause 1(a) of Article 99
of the 1992 Constitution. The question for the High Court to determine here is


                                                                            39
‘has someone been validly elected?’ Thus, where no such ‘someone’ has been
elected in the first place, no issue arises as to whether he was validly elected
or not and the High Court’s jurisdiction in the matter is not ripen yet.


More so, it is a cardinal principle of law that for a person to institute an action
he or she must have a cause of action which must be ripe at the time of the
institution of the action. To buttress this all important requirement the Court,
in Ex parte Alhaji Collins Dauda (supra) held at pages 10 and 11 of the
Judgment as follows:


       “…a party, before suing, must satisfy himself or herself that he or she
       has a cause of action at the time of the institution of the suit.”


In the case of Spokesman (Publications) Ltd. V. Attorney-General [1974] 1
GLR 88-93 Court of Appeal (Full Bench), the court explained the expression ‘a
cause of action’ at page 89 of the report as follows:


       “A party had a cause of action when he was able to allege all the facts
       or combination of facts necessary to establish his right to sue.” (see
       also dictum of Diplock L.J. in Letang v. Cooper [1965] 1 Q.B. 232 at
       pp. 242-243, C.A.).


By the combined effect of section 16 of PNDCL 284 and Ex parte Alhaji Collins
Dauda (supra), no cause of action whatsoever arises to challenge the validity
of a Parliamentary election before a candidate has been declared elected by
the Electoral Commission.


A cause of action is fundamental to the institution of an action and therefore
where there is no cause of action to institute an action, no process can cure
such lack of cause of action and clothe a party with a cause of action. What
this means is that any action brought to challenge the validity of a
Parliamentary election before a candidate has been declared elected by the


                                                                                40
Electoral Commission is premature; be it by a petition, a writ of summons or
some other process.


Accordingly, no remedies are due an aggrieved party yet, insofar as his action
is to challenge the validity of a Parliamentary election before a candidate has
been declared elected by the Electoral Commission. The situation would have
been different if the 1st interested parties are still left with no remedies after
their cause of action has ripened. They indeed have remedies under section
19 of PNDCL 284; but they have to wait for their cause of action to ripen first.
To put it in simpler terms, they have no other option in law than to wait for
their cause of action to ripen. Where there is no cause of action, the issue of
remedies does not arise.


The above analysis reflects the intention of the Legislature. A purposive
interpretation placed on sections 16 and 18 of PNDCL 284 shows that the law
maker did not intend premature and frivolous actions to be entertained to
challenge the validity of a Parliamentary election. The intention of the
Legislature in this regard may be seen from the provisions below.


For this reason, the law maker has provided for a requirement of security for
costs in challenging the validity of a Parliamentary election so as to
discourage frivolous and unwarranted electoral actions. Subsection 2 of
section 18 of PNDCL 284 (as revised) provides as follows:


       “(2) The presentation of an election petition under subsection (1) shall
       not be valid unless within the time specified in subsection (1), the
       petitioner gives as security for costs an amount of money determined
       by the High Court.”


For instance, on section 18 (2) of PNDCL 284, the Manual and Statutes on
Election Adjudicating in Ghana (Judicial Service) provides at page 33 as
follows:


                                                                               41
       “There is a further provision in sub-section 2 of section 18 of
       PNDCL 284 which stipulates that even though an election
       petition must have been filed within the twenty-one days after
       the results have been published in the Gazette, it is not valid if
       the petitioner does not pay as security for costs an amount
       determined by the High Court.”


Indeed, in the case of Republic v. Electoral Commission, Ex parte Amoo
[1997-98] 1 GLR 938, an election petition filed at the High Court was struck
out due to the failure of the petitioner to pay the costs for security within the
statutory period.


In concluding this point therefore, the law is that before a candidate has been
declared a winner in a Parliamentary election, no action can be brought to
challenge the validity of the election and the High Court similarly lacks
jurisdiction to hear same; even though some other actions may be brought to
address electoral irregularities other than to challenge the validity of the
election.


Where the action is brought to address an electoral irregularity other than to
challenge the validity of the Parliamentary election


This refers to an action that is not capable, by any stretch of imagination, of
resulting in any of the reliefs under section 19 of PNDCL 284 being granted.


Where the action is brought to address an electoral irregularity other than to
challenge the validity of the Parliamentary election, the normal court
processes and remedies apply, notwithstanding the Electoral Commission has
declared someone elected or not. The following instances will help clarify the
point being made here.




                                                                               42
First, where someone is unlawfully disenfranchised as a result of the fault or
inefficiencies of the Electoral Commission or some other body, a cause of
action is immediately ripe for the aggrieved person to seek declaratory and/or
other reliefs in a court of law. This is because, unlawful disenfranchisement is
a violation of one’s constitutional right contrary to Article 42 of the 1992
Constitution, the election notwithstanding.


Also, where a defamatory material is published against someone in the course
of a Parliamentary electoral exercise by the Electoral Commission or some
other body, a cause of action is ripe for the aggrieved person to bring an
action in defamation to claim damages and/or other appropriate reliefs,
notwithstanding the electoral exercise has not been completed or there has
not been a declaration by the Electoral Commission. This is because an action
in defamation is a common law action and as such should run its normal
course, the election notwithstanding.


Moreover, in relation to an election, where there is an alleged corruption on
the part of any person such as an Electoral officer, a candidate, a party agent
or some other person, a cause of action immediately arises at the instance of
the State in criminal prosecution. This is because, corruption is a crime under
the Criminal Offences Act, 1960 (Act 29) and prosecution under it should take
its normal course, the election notwithstanding.


Constitutional and public policy considerations


Article 46 of the 1992 Constitution provides as follows:


       “Except as provided in this Constitution or in any other law not
       inconsistent with this Constitution, in the performance of its functions,
       the Electoral Commission shall not be subject to the direction or
       control of any person or authority.”




                                                                             43
The import of this constitutional provision read in the light of Ex parte Alhaji
Collins Dauda (supra) and the electoral laws is that, in the case of a
Parliamentary election, no legal action seeking declaratory, injunctive and/or
other reliefs can be validly maintained against the Electoral Commission in a
matter relating to the validity of the election before the Electoral Commission
has declared a candidate as elected or has otherwise declared a result in
relation to the election.


In the instant case where no one has been declared elected therefore, the
Plaintiffs’ injunctive claims (c)-(f) endorsed on their writ were incompetent
before the High Court inasmuch as they, seeking to attack the validity of the
Parliamentary election, also sought to restrain the Electoral Commission in the
performance of its constitutional electoral functions at a time when the
Electoral Commission had not declared any person elected in the election.
Therefore the Electoral Commission, in the performance of its constitutional
electoral functions, must be allowed to conduct the voting in the affected
polling stations and carry on the electoral processes, at least, up to the point
when it has declared a candidate as elected, before any action can be
brought against it challenging the validity of the election and/or seeking
injunctive reliefs.


It must however be noted that, the above constitutional provision does not
operate to grant absolute immunity to the Electoral Commission against legal
actions in all matters and for the entire period that it is performing its
constitutional electoral functions. For instance, a person may well be able to
bring an election petition to challenge the validity of a Parliamentary election
after the Electoral Commission has declared a candidate as elected,
notwithstanding the Electoral Commission has not completed all the electoral
processes up to Gazette publication and notification to the Clerk of Parliament
under Regulation 41 of C.I. 15. Also, an action in defamation or an action
seeking redress for violation of one’s right to vote may well be validly
maintained against the Electoral Commission irrespective of whether it has


                                                                             44
declared a result in an election or not and whether it has completed its
constitutional electoral functions or not. Similarly, criminal prosecution can be
validly maintained against any officer(s) of the Electoral Commission, the
election notwithstanding. Other than to challenge the validity of an election,
an action under any law in force in Ghana which is consistent with the
Constitution can be validly brought against the Electoral Commission, the
performance of its constitutional electoral functions notwithstanding.


The provisions for security for costs and time restrictions in section 18 of
PNDCL 284 are to ensure that frivolous actions are not brought to thwart our
democratization process as a nation. If actions such as the Plaintiffs’ are
allowed, the effect would be that in situations where the Electoral Commission
has not declared any person as elected in a Parliamentary election, one can
bring an action to challenge the validity of such election by a writ of
summons. A writ of summons would thus become an alternative to an
election petition and the slogan would be: if the results of the Parliamentary
election have been declared, go by a petition, but if the results are yet to be
declared, then go by a writ of summons. Such a situation would pave way for
unmeritorious and even vexatious electoral actions to inundate the courts,
judging from how the nation becomes emotionally charged during periods of
public elections. The danger in such a situation is that the electoral process
may be so clogged at the courts that Parliament might not be able to be
constituted. This will clearly be contrary to public policy. The law maker could
not have intended such absurd results.


Conclusion


By the Plaintiffs’ claims endorsed on their writ of summons, their action goes
to challenge the validity of the Akwatia Parliamentary election. Thus, the
Plaintiffs should have waited for the Electoral Commission to, at least, declare
a winner in the election for their cause of action to ripen rather than seeking
to circumvent the legal process. Their premature action had the effect of


                                                                              45
stalling the Akwatia Parliamentary election. The Plaintiffs are not left without
any reliefs. After their cause of action has ripened, the Plaintiffs can challenge
the validity of the election by an election petition presented before the High
Court.


Their action being premature, the High Court lacked jurisdiction to entertain
same, whether it came by a writ or a petition. It is settled law that wrongful
assumption of jurisdiction is a ground for certiorari (see cases like Ex parte
Alhaji Collins Dauda (supra); Republic v. High Court, Accra, Ex parte
Industrialisation Fund for Developing Countries and Another [2003-2004]
SCGLR 348; Republic v. High Court, Accra, Ex parte CHRAJ [2003-2004] 1
SCGLR 312; Republic v. High Court, Accra, Ex parte Soku [1996-1997] SCGLR
535; Okofo Estates v. Modern Signs Limited [1996-1997] SCGLR 224).


Finally, it must be stated that where the Legislature has, in its manifold
wisdom, ordained that the way to question the validity of a Parliamentary
election is via a petition at the High Court, it behooves all persons to honor
the law in its observance than breaches by resorting to legalisms no matter
how ingenious it may be or sound (see Yeboah v. Mensah [1998-99] SCGLR
492 at 542).


I for the reasons stated in this opinion agree with my learned brethren that
the application succeeds and also with the orders about to be made presently.




                                                 J. ANSAH
                                   (JUSTICE OF THE SUPREME COURT)


                                                                               46
OWUSU JSC:


From the judgment of my respected brother which I had opportunity to read
before hand, I am of the opinion that he had said enough to justify the
conclusion arrived at by him and I am in complete agreement with him. For
the reasons assigned by him which I associate myself with, I also will allow
the application and same is hereby allowed.




                                                 R. C. OWUSU (MS)
                                         (JUSTICE OF THE SUPREME COURT)




DOTSE, JSC:
The thrust of this case which calls for determination in this Court can be
stated briefly as follows:
1.     Does the High Court lack jurisdiction to hear and determine a writ of
       summons commenced by the 1st Interested Parties herein, therein
       Plaintiffs against the 2nd Interested Party therein Defendant, seeking
       reliefs in the nature of an election complaint?
2.     Was the High Court, Koforidua, presided over by Suurbaareh J, in error
       of law when he delivered a Ruling on 23rd February, 2009 upon a
       motion by the Applicant herein, therein, 2nd Defendant to declare the
       writ of summons used in initiating the electoral dispute as
       incompetent?
FACTS




                                                                                47
The facts of this case admit of no controversy whatsoever. The Akwatia
Constituency, like the whole of the country took part in the Parliamentary and
Presidential elections that were held on 7th December, 2008.
On the 15th December, 2008 or thereabout, the Chairman of the Electoral
Commission, the 2nd Interested Party made a general announcement to the
effect that, due to the tampering with some ballot boxes in the Akwatia
Constituency, he would re-run the Parliamentary elections for only six polling
stations in the Akwatia Constituency.
The 1st Interested Parties herein, who were all Parliamentary candidates of
the NDC and Independents feeling that the electoral irregularities and
misconduct which necessitated the need to re-run the elections in only six of
the polling stations was not limited to only those stations but was widespread
throughout the entire constituency filed a writ of summons at the High Court,
Koforidua on 22nd December, 2008 against the 2nd Interested Party’s herein.
Based on the said writ of summons, the 1st Interested Parties succeeded in
obtaining an injunction which restrained the 2nd Interested Party from
conducting the re-run of the elections in the Akwatia Constituency.
The Applicant herein who was the New Patriotic Party Parliamentary
Candidate for the Akwatia Constituency applied to the Court and was joined
to the suit as a 2nd Defendant.
The 1st Interested Parties accordingly amended their writ of summons and
statement of claim. The amended writ filed in the High Court states as
follows:
a.     “A declaration that the general conduct of the Parliamentary
       elections in the Akwatia Constituency was characterized by
       such extensive and pervasive electoral irregularity and
       misconduct that they may reasonably be supposed to affect
       any declared outcome thereof.
b.     An order directed at the Defendant compelling it to conduct
       fresh Parliamentary elections for the whole of the Akwatia
       Constituency.




                                                                              48
c.    An order restraining the Defendant whether by itself, its agents,
      officers or other from conducting Parliamentary elections on December
      28, 2008 for only the six poling stations or any selected polling stations
      either than the entire 89 polling stations in the Akwatia Constituency.
d.    A further order restraining the Defendant whether by itself, its agents,
      Officers or other from conducting any special voting for security, media
      and other personnel in the Parliamentary elections on 23rd December
      2008 in any polling station or selected polling stations in the Akwatia
      Constituency.
e.    An order restraining the Defendant whether by itself, its
      agents, officers or other from declaring, gazetting or causing
      to be gazetted any result of the Parliamentary elections of
      December 7, 2008 at the Akwatia Constituency
f.    An order restraining the Defendant whether by itself, its
      agents, officers or other from, in any manner whatsoever,
      declaring any of the candidates that contested the
      parliamentary seat of the Akwatia Constituency as the elected
      member of parliament for the Akwatia Constituency pending
      the hearing and final determination of this suit”.
The Applicant herein, after he was served with the amended writ of
summons, entered appearance and thereafter filed an application to strike out
the writ on the grounds that the writ of summons used in initiating the action
was incompetent since the action was an election related matter and ought to
have been commenced by the process of a petition.
On the 23rd day of February the High Court, Koforidua delivered a Ruling
wherein the application to strike out the writ of summons was dismissed.
The Applicant thereafter filed the instant application at the Supreme Court,
seeking an order of Certiorari to quash the decision of the High Court on the
following grounds:
      1.     Wrongful assumption of jurisdiction/lack of jurisdiction
      2.     Error of law on the face of the record




                                                                                49
RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS
There is now no doubt that the Supreme Court has supervisory jurisdiction
over all Courts and other adjudicating authorities. See article 132 of
Constitution 1992.
This Article also vests the Supreme Court with the power to enforce its
supervisory jurisdiction over all such Courts and adjudicating authorities.
Furthermore, article 161 of the Constitution 1992 defines “supervisory
jurisdiction” as including writs or orders in the nature of habeas corpus,
certiorari, mandamus, prohibition and quo warranto”.
There are a litany of cases to give meaning to the exercise of this supervisory
jurisdiction of the Supreme Court.
Cases which readily come to mind are the following:
       1.     In Re Appenteng (Dec’d)Republic vrs High Court, Accra,
              Ex-parte Appenteng [2005 -2006] SCGLR 18
       2.     Republic vrs High Court, (Fast Track Division) Accra, Ex-
              parte Electoral Commission (Mettle–Nunoo & others-
              Interested Parties) [2005 -2006] SCGLR 514 and finally
       3.     Accra Recreational Complex Limited vrs Lands
              Commission [2007] SCGLR 108
       4.     Republic vrs High Court, Accra, Ex-parte Commission on
              Human Rights and Administrative Justice – Addo
              Interested Party [2003 – 2004]1 SCGLR 312
These cases prove that the application by the Applicant to this Court is well
grounded upon the Constitutional provisions and decided case law.
Article 99 (1) (a) of the Constitution 1992 provides as follows:-
       “The High Court shall have jurisdiction to hear and determine
       any question whether
              a.     a person has been validly elected as a member of
                     Parliament or the seat of a member has become
                     vacant”
It is further provided by article 99 (2) of the Constitution 1992 as follows:




                                                                                50
       “A person aggrieved by the determination of the High Court
       under this article may appeal to the Court of Appeal”
By the provisions of article 99(1) (a) it is certain and clear that it is the High
Court that has jurisdiction in determining the propriety of whether any person
has been validly elected as a member of Parliament or the seat of a member
of Parliament has become vacant. It is also clear that the elections in the
Akwatia Constituency are elections aimed at electing a member of Parliament
for the area as envisaged under article 99 (1) (a) of the Constitution 1992.
PROCEDURE
It is provided under section 16 (1) of the Representation of the people Law,
1992 (PNDCL 284) as amended as follows:-
       “16 (1) The validity of an election to Parliament may be
       questioned only by petition brought under this part.”
A perusal of sections 17 , 18 and 19 of the Representation of the People Law
1992, (PNDCL 284) shows clearly that detailed provisions have been made for
the capacities of the parties who may initiate action, the time within which
they may do so, and the reliefs that a Court dealing with an election petition
can grant a successful party.
In the instant case, the 1st interested Parties commenced their action in the
High Court by a writ of summons. The Applicant contends that the said
procedure renders the action incompetent whilst the 1st Interested Parties
contend otherwise.
I have read the written statement of case of all the parties as well as the viva
voce submissions of their respective Counsel.
From the submissions of Learned Counsel for the 1st Interested Parties, one
issue which calls for serious determination before progress can be made in
this case is this:
       Whether article 140 (1) of the Constitution 1992 renders
       section 16 (1) & (2) of the Representation of the People Law
       1992, PNDCL 284 unconstitutional.
Out of abundance of caution, let me quote article 140 (1) of the Constitution
1992 which stipulates as follows:


                                                                                     51
       “140 (1) The High Court shall, subject to the provisions of this
       constitution, have jurisdiction in all matters and in particular,
       civil and criminal matters and such original, appellate and
       other jurisdiction as may be conferred on it by this
       Constitution or any other law”
There is absolutely no doubt that the High Court has unlimited jurisdiction in
all matters, both civil and criminal subject only to the Constitution 1992 and
other laws.
If I understand the arguments of learned Counsel for the Applicant and those
of the learned Counsel for the 1st and 2nd Interested Parties which I think I
very well do, then it is to the following effect.
APPLICANT
That even though the High Court has jurisdiction in the matter, the procedure
adopted by the 1st Interested Party in coming by way of a writ of summons
and not a petition is contrary to section 16 (1) & (2) of PNDCL284.
To that extent, the assumption of jurisdiction by the Court to deal with the
matter despite the wrong procedure adopted by relying on procedure outlined
in the High Court (Civil Procedure) Rules (2004) C. I. 47 is wrong and for that
matter Certiorari will lie to quash the said decision.
1ST INTERESTED PARTIES
Basing himself on article 140(1) of the constitution referred to supra, and
Public Elections Regulations (1996) C. I. 15, Regulations 41, (1) (a) – (e)
learned Counsel for 1st Interested parties submitted as follows:
1.     That since the High Court has unlimited jurisdiction in all matters they
       are in the right forum and the application for certiorari is therefore
       untenable in view of the Supreme Court decision in Republic vrs
       High Court(F.TD) Accra, Ex-parte CHRAJ Kwame Addo,
       Interested Party [2003-2004] 1 SCGLAR 312 already referred
       to supra.
2.     That the Akwatia Constituency Parliamentary elections have not been
       completed for the procedure in section 16 (1) & (2) of PNDCL 284 to
       be called in question.


                                                                                 52
2nd INTERESTED PARTY
Learned Counsel for the 2nd Interested Party submitted as follows:-
1.     That it is wrong for the 1st Interested Parties to circumvent the
       procedure for commencement of electoral related disputes, by filing a
       writ of summons instead of petition.
2.     That the procedure for holding election as outlined in PNDCL 284
       having been completed, the only procedure that has to be followed is
       for the 1st Interested Parties to wait for the re-run of the election to be
       held, thereafter have the results, declared before any challenge can be
       initiated therein.
I am therefore of the considered opinion that the following conditions should
apply in this case:
1.     Article 140 (1) of the Constitution 1992 confers general jurisdiction on
       the High Court in all matters and this cannot be disputed.
2.     The Constitution it must be noted is the basic law from which all other
       Laws derive their legitimacy. Thus, any law found to be inconsistent
       with the Constitution 1992, must to the extent of the inconsistency be
       declared null and void. See article 1 (2) of Constitution 1992.
3.     Since the Constitution does not provide and stipulate rules of
       procedure, one must look elsewhere. In the instant case, it is in
       PNDCL 284 and C.1. 47 already referred to supra.
4.     PNDCL 284 is a substantive Law which has prescribed rules of
       procedure for a jurisdiction that has been specially created by article
       99 (1) (a) of the constitution 1992 in contra distinction to general rules
       of procedure for the High Court in the High Court, (Civil Procedure
       Rules) 2004, C. I. 47.
5.     As the name implies, the rules of procedure outlined in C. I. 47 are
       subsidiary legislation and to that extent cannot take precedence over
       and above rules of procedure outlined in substantive i. e. statutory Law
       to wit PNDCL 284 already referred to supra.




                                                                                 53
From the above, it is trite law and practice that under the rules of
interpretation, the following scenario applies:
1.     Constitutional provisions take precedence over any other laws and or
       subsidiary legislations. See article 1 (2) and 2 (1) (a) & (b) of the
       Constitution 1992.
2.     Next in line are Acts of Parliament. To the extent that the said Acts of
       Parliament are not inconsistent with any provision of the Constitution,
       they are deemed to be valid and a Court must apply its provisions.
3.     Then we have the subsidiary legislations which come in the form of
       Constitutional Instruments or Legislative Instruments as they were
       previously called.
In the instant case, since there is no conflict between the Constitutional
Provisions in article 140 (1) of the Constitution 1992 and the relevant sections
of PNDCL 284, especially sections 16 (1) and (2) thereof, it follows that, the
procedure outlined in sections 16 (1) & (2) of PNDCL 284 as the method by
which electoral disputes touching and concerning the election of a Member of
Parliament are to be proceeded with pursuant to article 99 (1) (a) of the
Constitution 1992 are valid. There is a clear intention on the part of the
framers of the Consitution and PNDCL 284 to raise the procedure for
commencement of electoral disputes to a higher pedestal, or level. This level
is that of Petition, which is a separate and distinct procedure from the
generally accepted mode of initiating action in the High Court, which is stated
in C.I 47 to be by writs of summons.
PUBLIC POLICY
In this regard, the Supreme Court, must consider these provisions as a
manifestation of public policy.
One might then legitimately ask why the procedure for initiation of electoral
disputes is separate and distinct from those generally stated in the initiation
of all other actions in the High Court?
The answer might be that, since there must be an element of early
resolutions of election disputes and finality in the determination of early
election results, to enable whoever has emerged victorious to be known as


                                                                                  54
well as the defeated candidates, a process which is fast, swift but fair and just
must be adopted for the above objectives to be achieved.
See the decision of Wood (Mrs) J.A in the case of Wulensi Constituency
Parliamentary Elections, Zakaria vrs Nyimakan, already referred to supra in
extenso.
Considering the public policy elements inherent in this case, I am of the firm
view that there are indeed very sound, reasonable, solid, progressive and
convincing public policy elements and or measures behind the changes in
procedure outlined for pursuit of electoral disputes as against pursuit of other
disputes for whose procedure one has to look at C. I. 47 and other laws
provided for the purpose.
Thus, even though there seems to be some uncertainty about the
constitutional provisions in article 140 (1) of the Constitution on the status of
the High Courts, and the procedure outlined in sections 16 (1) & (2) of the
Representation of the Peoples Act, (1992) PNDCL 284, from the analysis and
explanations stated supra, the uncertainty therein, if any, is only an
imagination which has no real legal basis in law and from rules of
interpretation.
This is because, since PNDCL 284 is an earlier enactment to the provisions in
C.I. 47, if the legislature had wanted to amend the procedure in section 16
(1) & (2) of PNDCL 284, it would have done so expressly by substantive law
and not left it as it is. That means the procedure in PNDCL 284 is still superior
to that outlined in C. I. 47.
I therefore hold that even though the High Court Koforidua has jurisdiction in
the matter brought before it by the 1st Interested parties, the procedure
adopted before the Court is not the procedure authorized under the law. It
should therefore be clearly understood and noted that there is nothing
unconstitutional about the provisions of article 140 (1) of the Constitution
1992 and sections 16 (1) & (2) of PNDCL 284 already referred to supra
WHAT THEN IS AN ELECTION DISPUTE




                                                                                55
In this respect, it is necessary to decide what constitutes an election petition,
and whether the reliefs endorsed by the 1st Interested Parties, referred to
supra qualify to be considered as an election petition.
In my very humble and well considered opinion, the reliefs being claimed by
the 1st Interested parties are election related but clothed in the nature of a
writ of summons.
For instance, it is quite clear that reliefs (a) and (b) are certainly election
related reliefs and by their combined effect, are seeking an order directed at
the 2nd Interested Party to conduct fresh Parliamentary election in the entire
Akwatia Constituency and not the six that they intend to re-run.
Furthermore, reliefs (e) and (f) which are in the nature of restraining orders
directed at the 2nd Interested Party from gazetting or declaring any of the
candidates that contested the Akwatia Constituency Parliamentary elections
as the Member of Parliament is nothing but an election petition camouflaged
as a writ.
What should be noted is that it is not what a party states his complaint or
plaint to be that determines the nature of the cause of action. On the
contrary, it is what the Court with the trained legal mind considers it to be
after applying to it all the tests that are necessary to determine it to be so.
For example, it is generally understood that the High Court, even though has
jurisdiction in all matters, civil and criminal, has no jurisdiction in chieftaincy
matters. And the High Courts and the Supreme Court have always been called
upon to make determinations as to whether this is a cause or matter affecting
Chieftaincy which has the effect of ousting the jurisdiction of the Court.
This matter has been expressly stated in the following Constitutional and
statutory provisions
Articles 270 -277 of the Constitution 1992 preserves the institution of
chieftaincy.
The provisions also reserve for the Traditional, Regional and National Houses
of Chiefs all original and appellate jurisdictions in chieftaincy disputes save the
Supreme Court that has appellate jurisdiction. See article 131 (4) of the
Constitution 1992.


                                                                                      56
See also Courts Act, 1993 (Act 459) section 57 thereof where it is stipulated:
         “Subject to the provisions of the Constitution, the Court of
         Appeal, the High Court, Regional Tribunal, a Circuit and
         District Court shall not have jurisdiction to entertain either at
         first instance or an appeal any cause or matter affecting
         chieftaincy.”
The same point has been made with emphasis in the Chieftaincy Act, 2008
(Act 759).
This therefore means that, whenever a general jurisdiction has been given an
adjudicating body like the High Court, one must ensure that there is no other
statutory, legislative or constitutional instrument limiting the scope of that
jurisdiction in substance or procedure. There also sometimes might be special
provisions about procedural rules to be applied as has happened in the
instant case., where special procedural rules have been made for
commencement of electoral disputes, to wit petitions.
From the above examples, this Court has power to determine whether the
writ filed in the High Court is an election dispute or not. It is my considered
view that the writ the 1st Interested parties filed at the High Court is an
election dispute and ought to have been commenced by a petition. I am
further strengthened in this view by the majority decision of Bamford Addo
(JSC) in the case of New Patriotic Party vrs National Democratic
Congress [2000] SCGLR 461 at 472 and which was quoted with approval
when the Supreme Court spoke with one voice through Dr. Date-Bah (JSC) in
the unreported Supreme Court Case, Civil Motion J5/12/09 dated 8th April,
2009 entitled Republic vrs. High Court Judge, Sunyani, Ex-parte Alhaji
Collins Dauda
         Coram: W. A. Atuguba, S. Akuffo, K. Date-Bah, R. C. Owusu and P.
         Baffoe Bonnie (JJSC)
Per Bamford-Addo JSC as she then was in the NPP vrs NDC case referred to
supra.
         “Can an election petition be brought before or after an
         election and what is an election petition? It is any dispute as


                                                                                  57
       to the validity of a particular election which is raised on an
       election petition and which is decided by a Court having
       jurisdiction to determine the same, namely the High Court as
       provided in section 16 (1) and (2) of the Representation of the
       People Law, 1992 (PNDCL 284)”
After quoting the relevant provisions already referred to supra, Bamford Addo
JSC who was in the majority with F. Y. Kpegah and W. A. Atuguba
(JJSC)continued thus:
       “An election petition can be brought only once after an
       election has been held and the reliefs which could be granted
       by the Court are specified in section 19 of PNDCL 284”
Juxtaposing the above definition of what an election petition is, with the
nature of the reliefs couched in the writ in the instant case, I am left in no
doubt, that the 1st Interested Parties filed their writ in order to circumvent
the clear words of the statute which stipulate that an election petition can
only be filed after the results of the election have been declared and
gazetted.
It will appear that, because the 1st Interested Parties did not want to have the
2nd Interested Party re-run the election in only the six polling stations, they
rushed to the High Court, filed a writ of summons which in essence and
substance is an election petition and succeeded in obtaining an injunction
against the Electoral Commission. In circumstances like this, a Court of
law, must look more at the substance and not the form of the action.
I am therefore of the firm opinion that once the law has provided that the
only valid method in PNDCL 284 by which election disputes are to be
commenced is by petition as distinct from writs of summons, then it follows
that, if that prescribed method or procedure is not strictly followed, what has
been wrongly commenced cannot be accomplished.
This can be summarised as follows:
Where a statute has made provisions for certain steps to be taken in
order to comply with the requirements of the law, then no other
steps other than those prescribed must be taken or followed. In this


                                                                                  58
case, once the 1st Interested Parties have failed to strictly adhere to
the provisions of PNDCL284 as will be shortly established, it follows
that their action falls flat in the face of the law. This must not be
countenanced by a Court, of law especially the Supreme Court for that
matter. This is because it is from the Supreme Court that all the other Courts
take direction and guidance, because of the principle of stare decisis.
This application of the principle of stare decisis or judicial precedent does not
involve an exercise of judicial discretion at all. It is what must be done, that is
done, it is in essence, mandatory. The doctrine is based first of all on the
relevant likeness of, or between the cases, the previous one and the one
before the Court. If there is no likeness between the two, there is no need to
consider whether the previous one should be followed or departed from.
As will be seen shortly, this Court in previous decisions appears to have firmly
held the view that election complaints in the nature formulated by the 1st
Interested Parties amounts to an election petition.
In such a situation, the 1st Interested parties should have co-operated with
the 2nd Interested Party to re-run the election in the six polling stations,
declare the results before rushing to court to file their case.
That not having been done, there is no good reason for me to depart from
the previous decisions of this Court on the subject matter
See cases like:
       1.     New Patriotic Party vrs National Demcroatic Congress
              already referred to
       2.     Yeboah vrs Mensah [1998-99] SCGLR 492
       3.     Republic vrs High Court Judge Sunyani, Ex-parte Alhaji
              Collins Dauda, unreported, already referred to supra
       4.     In Re Parliamentary Election for Wulensi constituency,
              Zakaria vrs Nyimakan [2003-2004] SCGLRI
       5.     The unreported judgment of the Court of Appeal in the
              same Zakaria vrs. Nyimakan case dated 11th April 2002
              and
       6.     Nyame vrs Mensah [1980]GLR 338


                                                                                 59
Commenting on article 99 (1) (a) of the Constitution 1992, the Supreme Court
in the Yeboah vrs J. H. Mensah case already referred to supra held at page
493 that:
        “the High Court, and not the Supreme Court, was the proper
        forum under article 99(1) (a) of the 1992 Constitution - which
        had provided for a specific remedy at the High Court for
        determining challenges to the validity of a person’s election to
        Parliament, and not resort to the enforcement jurisdiction of
        the Supreme Court under articles 2 (1) and 130 (1) of the
        Constitution. Edusei vrs Attorney General [1996 -97] SCGLR 1
        and review [1998-99] SCGLR 753 followed. Gbedemah vrs
        Awoonor Williams [1970] 2 G & G 438 S.C criticised.
It must therefore be noted that, once the Constitution 1992 and the Statutory
Law section 16 (1) and (2) of PNDCL 284 have both provided a remedy and a
forum for the adjudication of certain types of disputes, to wit the validity of
the election of a Member of Parliament it follows that it is that forum and
procedure that must be strictly applied.
The Supreme Court in the Wulensi Constituency case, Zakaria vrs
Nyimakan already referred to supra, by a four to one majority held in part
as follows:
        When a remedy had been given by the Constitution and a
        forum had also been given by either the Constitution itself or
        statute for ventilating a grievance, it was to that forum that a
        Plaintiff might present his petition.” Emphasis
Undoubtedly, the 1st Interested Parties had presented their case in the right
forum the High Court. But was it the proper and right procedure that was
used?
The Court of Appeal in the same Wulensi case already referred to supra
stated its opinions on the procedure to be used in election petitions (which I
agree with) in these terms, per Wood (Mrs) J. A as she then was:
        “S.26(1) of PNDCL 284 stipulates the rule of procedure for presentation
        and hearing of a petition under this part, shall be the same, as the


                                                                                  60
      rules of procedure applicable to a civil cause or matter before the High
      Court”.
      Procedural rules for presentation, would in my view include the form of
      the petition itself. Therefore the question raised by this legal ground is
      should an election petition brought under our electoral laws
      be commenced by a writ of summons with the title setting out
      the names of the parties as advocated by appellant Counsel or
      should it take some other form? These are various methods of
      initiating proceedings in our Courts.
      A petition, separate and distinct from the well known method
      of beginning proceedings by a writ of summons, is one of
      them. It being the method sanctioned by law for questioning
      the validity of Parliamentary elections, the law would look to
      that method and that method alone”.
      I cannot but agree with the decision of the Court of Appeal on this
      point and I accordingly adopt these words as if they were my own.
      This is because I had already held that the nature of the reliefs claimed
      by the 1st Interested Parties in their writ of summons is nothing but an
      election dispute couched in the form of a writ instead of a petition.
      The fact of Parliamentary election disputes being the preserve of the
      High Court and the method also being prescribed as a petition has
      been given Judicial blessing in the opinion of Bamford Addo (JSC) as
      she then was in the NPP vrs NDC case already refereed to supra at
      page 472 as follows:-
      “It is to be noted that this article only sets out the qualifications for
      parliamentary candidates for election (that is article 94 (3) (b) of the
      Constitution 1992) which election is handled by only the Electoral
      Commission and which issue or dispute is to be handled in an
      election                                       petition at the High
      Court”.
In my considered view therefore, the 1st Interested Parties only wanted to
circumvent the procedure set out in section 16 (1) and (2) of PNDCL 284


                                                                                  61
because of the impediments in their way. These impediments are that, if they
should file an election petition, then they have to allow the 2nd Interested
Party the Electoral Commission to complete its work, declare the results
before they can contest the said elections
I believe that the time is ripe for Courts of Law to frown upon and condemn
any attempt whatsoever aimed and directed at circumventing laid down
procedures as established by law. These specie of conduct has the effect of
destroying the fabric of the Constitutional and legal structures of society.
My very respected brother Atuguba JSC and President of this Court had
occasion to comment in the NPP vrs. NDC case already referred to supra on
page 525 and 526 in the following glowing terms – on the issue of
circumventing laid down procedural rules as follow:-
       “Similarly, it has been held that an action which seeks to circumvent
       the requisite procedure is an abuse of the process which can be struck
       out, even in Constitutional matters. Thus in Attorney-General of
       Trinidad and Tobago vrs Mcleod [1984] 1 ALL E.R 649 at 700
       PC it was held, following Harrikisson vrs Attorney General of
       Trinidad and Tobago[1980] AC 265 at 268 that the invocation of
       the procedure for ventilating the fundamental human rights may well
       be frivolous and vexations, and an abuse of the Court’s process when
       resorted to as a device for circumventing the procedure for questioning
       administrative action: See also O’Reilly vrs Mackman[1982] 3 ALL
       E.R. 1124 H.L, followed in Cocks vrs Thanet District
       Council[1982] 3 ALL E.R 1135, H.L in which it was held that
       the resort to a writ for ventilating a right under public law was
       an abuse of the Courts process by circumventing the
       procedure under Order 53, r.1 of the English Supreme Court
       Rules, which required an application in such cases for leave
       for Judicial review.”
       It will be seen for all the foregone reasons, that the 1st Interested
       Parties should not have commenced their action in the High Court by a




                                                                               62
writ of summons, but by a petition only after the elections had been
declared.
In the instant case, both Counsel have made copious references to the
unreported decision of this Court in the Ex-parte Alhaji Collins Dauda
case already referred to supra.
In this regard, it is necessary to quote in extenso portions of the
unanimous judgment of the Court which spoke with one voice through
Date-Bah JSC
       “Our interpretation of section 18 of PNDCL 284 as impliedly
       requiring the declaration of the election result even in the case
       of an allegation of corrupt practice, is buttressed by the
       provisions in sections 19 and 20 of the law. The language of
       section 19 impliedly asserts that an election petition can be
       brought only after a candidate has been declared elected. It is
       in the following terms:_
       19. After the hearing of an election petition the High Court may
       make any of the following orders:
               a.    declare that the election to which the petition
                     relates is void
               b.    declare that a candidate other than the member
                     whose election is questioned was duly elected, or
               c.    dismiss the petition and declare that the member
                     whose election is questioned as duly elected”
“The reason why we consider that this provision assumes that an
election petition may be brought only after a declaration of the results
is that an election can hardly be declared void, under paragraph (a)
above, if it has not been completed and declared by the Electoral
Commission. It can be cogently argued that an election whose results
have not yet been declared is an inchoate or incomplete election,
rather than an election. Section 19 (b) contains the expression
“member whose election is questioned”. This expression in our view,
implies that the member’s result have been declared. Section 19 (c)


                                                                         63
       also contains the expression “member whose election is questioned”
       which to us, again implies that the members results have been
       declared. Similarly, section 20 of the Law assumes that a candidate has
       been declared elected and gives the High Court power to declare the
       election void on the grounds set out in its subsections.
       Accordingly, our conclusion from reading these provisions of
       PNDCL 284 together is that, even in the case of an allegation
       of a corrupt practice, an election petition may only be brought
       after the Electoral Commission has declared a result in relation
       to the election. This means that the Interested Party’s petition
       before the Sunyani High Court was premature and the High
       Court lacked jurisdiction to enter into its merits” emphasis
       supplied
       There are many similarities in the above case and the instant one.
       1.     In both cases, the results had not been declared, meaning the
              elections had not been completed.
       2.     In both cases, allegations of misconduct and tampering with
              ballot boxes had been made.
       3.     In both cases, the elections in question touch and concern
              Parliamentary elections of persons seeking to be elected into
              Parliament.
       4.     In both cases, an injunction was secured to prevent the
              Electoral commission from completing its work.
       5.     In both cases the respective actions had been prematurely
              commenced.
       6.     The only point of difference is that, whilst a writ had been filed
              to mitigate the action in the instant case, a petition was filed in
              the Ex-parte Alhaji Collins Dauda case.
As has already been stated by me, looking at the substance and not the form
it is clear that the reliefs in the instant case are election related and are
meant to circumvent the legal requirement of filing petitions in such cases.




                                                                                64
In the instant case, this type of conduct is unacceptable and this Court will
frown upon it and condemn it in no uncertain terms as an abuse of the
process.
If one considers section 19 of PNDCL 284 and the reliefs that the 1st
Interested Parties are seeking in the High Court, it is clear that the same
result would have been met if they had waited to file an election petition.
This is because, the Court could have declared that the election to which the
petition related is void and therefore called for fresh elections as the 1st
Interested Parties contended.
On the contrary, the High Court could have declared a person other than the
candidate declared to have won the election as duly elected. See Enos vrs
Electoral Commission [1999-2000] 1 GLR 564 at 565.
In the instant case, the 1st Interested Parties are in the right forum, the
procedure adopted is clearly wrong, unwarranted and an abuse of the
process.
It is the non-compliance with the procedural requirements that the 1st
Interested Parties have faulted in, thereby making their commencement of
the entire action premature and unwarranted in law.
I cannot but agree with Mr. James Quashie Idun, learned Counsel for the 2nd
Interested Party that all the indications of an election have been met in the
Akwatia Constituency Parliamentary elections. What remains to be done is for
the said elections to be completed in only six polling stations and declare
same.
It is therefore untenable that the learned High Court Judge did not see
anything wrong with the improper procedure that was adopted before him in
what seemed clearly to be an election dispute and therefore a petition and
not a writ of summons should have been used. I hold therefore that the High
Court lacked jurisdiction to hear and determine the premature suit
commenced by a writ of summons by the 1st Interested Parties in suit No. E
2/19/09 dated 22/12/2008 against the 2nd Interested Party and the Applicant
who applied and was later joined to the suit. Wrongful assumption of




                                                                                65
jurisdiction is a ground for Certiorari. See Republic vrs High Court,
Sunyani, Ex-parte Collins Dauda case referred to supra.
Secondly, it is quite clear that the instant writ had been filed prematurely.
There is no way the learned High Court Judge can proceed to deal with the
reliefs in the case before him in view of the wrong procedure that was used.
To that extent, his decision that it is proper to initiate such actions by writ of
summons is wrong in law and amounts to error of law. Republic vrs High
Court, Accra Ex-parte CHRAJ, Addo, Interested Party applied, already referred
to supra.
It must be noted that, once the judgment and the writ have been attached to
these proceedings it is sufficient for the purposes of this Court to issue the
writ of Certiorari
In that vein, also, Certiorari will lie.
CONCLUSION
Accordingly, Certiorari lies to quash the Ruling of the High Court, Koforidua
dated 23/02/2009 in suit No.E2 19/09 entitled Baba Jamal Mohamed
Ahmed and two others vrs the Electoral Commission and Another and
it is hereby ordered that the said Ruling and proceedings be and are hereby
brought up to be quashed and same are hereby quashed.




                                                  J.V.M. DOTSE
                                           (JUSTICE OF THE SUPREME COURT)




BAFFOE-BONNIE, JSC:
I have had the benefit of reading before hand the lucid opinion read by my
learned brother Jones Dotse and I am in full agreement with the reasons
therein contained. The issuance of a Writ of Summons to commence an
election related matter instead of a PETITION flies in the face of the
provisions of section 16 of PNDC LAW 284.


                                                                                 66
As was stated by this court in the case of BOYEFIO V. NTHC PROPERTIES
LTD 1997-98 1 GLR 768


       “The law was clear that where an enactment had prescribed a special
       procedure by which something was to be done, it was that procedure
       alone that was to be followed”


Justice Benin put it more succinctly in the case of
THE REPUBLIC VS. NANA KRU PERKOH II EXPARTE NANA JOHN ERZOAH
CIVIL APPEAL NO. 46/2000 C.A(Unreported).


       “…Where an enactment sets out a procedure for invoking the
       jurisdiction of a court a party must comply with it or be thrown out of
       court. The rule that non-compliance can be cured is referable to steps
       in the action. The rule does not confer authority to authorize disregard
       of rules of court. What the rules tolerate by way of infractions are the
       steps that are taken in the action, that is, after the appropriate
       originating process had been filed out at the right place and is
       before the right forum”(emphasis added)


Having originated their action by the inappropriate process of a Writ of
Summons, in contradistinction to the appropriate process of petition as
specifically prescribed by section 16 of the Representation of Peoples Law
1992 PNDCL 284, the High Court was not vested with jurisdiction to go into
the matter.




The ruling of the High Court reserving jurisdiction to itself to go into the
matter is therefore wrongful and amenable to certiorari.
It is my view, and I so hold, that the application for certiorari succeeds and
same is granted as prayed.




                                                                                 67
                                  P. BAFFOE-BONNIE
                            ( JUSTICE OF THE SUPREME COURT)


COUNSEL:-
K. AMOAKO ADJEI FOR THE APPLICANT.
TONY LITHUR FOR 1ST INTERESTED PARTIES.
JAMES QUARSHIE IDUN FOR THE 2ND INTERESTED PARTY.




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