The Republic Vrs High court Judge , Sunyani (J5/12/2009) [2009] GHASC 24 (08 April 2009);

IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA – GHANA

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CORAM: ATUGUBA, J.S.C. (PRESIDING)

AKUFFO (MS), J.S.C.

DATE-BAH (DR), J.S.C.

OWUSU (MS), J.S.C.

B. BONNIE, J.S.C.

CIVIL MOTION

NO. J5/12/2009

8TH APRIL, 2009

THE REPUBLIC

-VRS –

THE HIGH COURT JUDGE, SUNYANI . .. RESPONDENT

EX PARTE: ALHAJI COLLINS DAUDA … APPLICANT

YIADOM BOAKYE BOATENG … INTERESTED PARTY

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R U L I N G

DR. DATE-BAH JSC:- UNANIMOUS RULING

This case raises an important issue of jurisdiction in relation to election petitions. It is this: does the High Court have jurisdiction to entertain any election petition under the Representation of the People Law 1992 (PNDCL 284) before the Electoral Commission has declared the results of that election?

The facts

Before we provide an answer to this question, let me set out the material facts of this case. This is an application by Alhaji Collins Dauda, the Parliamentary candidate for the National Democratic Congress for the Asutifi South Constituency in the Brong Ahafo Region. The application seeks to invoke the supervisory jurisdiction of this Court to quash, by an order of certiorari, the ruling of His Lordship Justice Francis Kwabena Opoku of the Sunyani High Court, dated 6th January 2009, and to prohibit the said learned judge from going on with the suit number C11/01/09, intituled: The NPP Parliamentary Candidate, Yiadom Boakye-Boateng v 1. The Electoral Commissioner Per the Chairman Through the Regional Director, B/A Region 2.The NDC Parliamentary Candidate, Alhaji Collins Dauda 3. The District Electoral Officer, Asutifi District.

The ruling complained of was made in a suit brought by Mr. Yiadom Boakye-Boateng, the NPP Parliamentary candidate for the Asutifi South Constituency. He presented an election petition to the High Court, Sunyani, on 16th December 2008, complaining that the election results in his constituency had been tampered with and praying the court either to discount two ballot boxes, whose post-ballot custody and transmission arrangements to the collation centre, the petitioner maintained, left much to be desired, and declare the winner, or to annul the entire Parliamentary results of the constituency and order fresh Parliamentary elections. The petitioner on the same day as he filed his original petition filed an amended petition which spells out the petitioner’s prayer as:

“(a) An order of the Honourable Court declaring that the circumstance under which the two (2) ballot boxes of Twabidi No. 1 and 2 went to Kenyasi No. 1 and their contents swapped respectively is/was illegal and same is void.

An order of perpetual injunction restraining the Respondents from releasing the two ballot boxes (Parliamentary) to the other 66 ballot boxes to declare a winner.”

The petitioner also filed an application for an interim injunction, on 15th December 2008 seeking an order to restrain the Respondents from declaring the Parliamentary election held in Asutifi South Constituency on 7th December 2008.

The second respondent and also the first and third respondents in the petition separately brought applications to set aside the petition. The second respondent argued, inter alia, that the petitioner’s petition and application for interlocutory injunction were incompetent as the petitioner could only bring the election petition within 21 days after the publication in the Gazette of the results of the election to which the petition relates. Similarly, the first and third respondents argued that the Gazette notice containing the results of the election was yet to be published and therefore the petitioner’s petition was premature. They contended further that by reason of the premature filing of the petition and the motion for interim injunction and the service of them on the respondents, the first respondent (that is, the Electoral Commission) had been prevented from performing its constitutional duty of declaring the results of the Parliamentary election held for the Asutifi South Constituency on 7th December, 2008.

On the 6th of January, 2009, the petition, along with the applications to set it aside, came on for hearing before His Lordship Justice Opoku at the Sunyani High Court. He overruled the objections of the respondents and affirmed that the petition was properly before the court. He indicated that he would give the reasons for his decision on 12th January 2009 and directed the respondents to file their responses to the petition. In the end, he gave his reasons on 30th January 2009. Those reasons were appended to the affidavit in opposition to the application before this court sworn to by the interested party herein. In his ruling, Justice Opoku makes a distinction between the two limbs of section 18(1) of the Representation of the People Law, 1992 (PNDCL 284). Section 18 of the Law reads as follows:

“(1) An election petition shall be presented within twenty-one days after the date of the publication in the Gazette of the result of the election to which it relates, but a petition questioning an election on an allegation of corrupt practice and specifically alleging a payment of money or any other award to have been made by the person whose election is questioned or to have been made on behalf of and to that person’s knowledge, may be presented within twenty-one days after the date of the alleged payment.

The presentation of an election petition under subsection (1) is not 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.
The time limit provided by this section for the presentation of an election petition shall not be extended.”

Justice Opoku considers that the allegations made by the petitioner, if true, would come under the category of a corrupt practice and they should be considered in relation to the second limb of section 18(1) above. This is what he said:

“The 2nd limb deals with where corrupt or illegal practice has been alleged by the petitioner. From the facts presented supra it is my considered opinion that they are proceeding under the 2nd limb or the exception. Clearly there are two avenues for seeking the court’s intervention. Mr. Otu-Essel for the 2nd respondent cited the case of Republic v High Court, Bolgatanga, Ex parte Hawa Yakubu [2001-2002] SCGLR 53 to buttress his contention. The law is clear on this point. If the basis of an election petition was that of corrupt practice in which money or other award was alleged to have been paid, then the petition should be prosecuted within 21 days after the date of the payment or date of detection of the corrupt/illegal act. Otherwise the petition must be commenced within 21 days after the declaration of the results in the Gazette. In the instant case the corrupt/illegal practices complained of allegedly occurred and were detected on December 7 and 8 respectively.”

He then proceeds to hold that the petition was properly before him.

It is against this ruling by His Lordship Justice Opoku that the Applicant before this court is seeking to invoke the supervisory jurisdiction of this Court.

The arguments of the parties

The applicant’s case as argued in its Statement of Case is as follows:

Section 18(1) of PNDCL 284 confers jurisdiction on the High Court to hear petitions only after the result of an election has been declared. The learned High Court judge, therefore, wrongly assumed jurisdiction when he decided to hear the petition before the declaration of a result by the Electoral Commission, in spite of his attention having been drawn to an obvious infringement of the statute.

Furthermore, the petition sins against the provisions of Article 46 of the Constitution that:

“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.”

The applicant contends that by this provision no one can bring an action to restrain the Electoral Commission in the performance of its duty of declaring an election. What any aggrieved person should do is to wait for the results to be declared and then bring a petition to question the results.

The applicant also relies on article 295(8), which says:

“No provision of this Constitution or of any other law to the effect that a person or authority shall not be subject to the direction or control of any other person or authority in the performance of any functions under this Constitution or that law, shall preclude a court from exercising jurisdiction in relation to any question whether that person or authority has performed those functions in accordance with this Constitution or the law.”

The applicant interprets this provision, when read together with Article 46 (supra), as meaning that the court should wait for the Electoral Commission to declare the result before it can entertain a suit by an aggrieved party questioning the results. Moreover, the applicant submits that this position is true even in relation to alleged corrupt electoral practices which take place before the results are declared and gazetted. The applicant submits further that if the High Court assumes jurisdiction over an election petition that is commenced before the results are declared and gazetted, this would amount to a breach of the statutory and constitutional provisions referred to supra, namely, sections 18 and 20 of PNDCL 284 and articles 46 and 295(8) of the 1992 Constitution.

Accordingly, the applicant argues that certiorari is available to quash the ruling of the learned High Court judge, in accordance with settled case law. He cites in support of his case: In re Appenteng (deceased). Republic v High Court, Accra; Ex parte Appenteng [2005-2006] SCGLR 18; Republic v High Court, Denu; Ex parte Kumapley (Dzelu IV Interested Party) [2003-2004] SCGLR 79; Republic v High Court, Ex parte Soku [2001-2002] SCGLR 901; Republic v Court of Appeal, Ex parte Ghana Cable Limited [2005-2006] SCGLR 107; and Republic v High Court, Ex parte CHRAJ [2003-2004] SCGLR 312.

In response, the interested party has argued in his Statement of Case that certiorari does not lie on the facts of this case, since there is no egregious breach or an error so fundamental as to go to the very roots of justice. The interested party also relies on section 18(1) of PNDCL 284, but his interpretation of the second limb of that provision is that an election petition can be brought immediately there is evidence of a corrupt practice without waiting for a declaration of results by the Electoral Commission. He declares:

“In other words, where you have evidence that some CORRUPT PRACTICE in the nature of payment of money to influence the election in favour of one candidate, you MUST act TIMEOUSLY by bringing an election Petition within twenty one days.

And so, my Lord, this whole application boils down to a determination as to whether or not the Petition in the court below concerns a CORRUPT PRACTICE.”

The Law

It is clear from the language of section 18 (supra) 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 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 petition 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 in the passage (supra) 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 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.

The drafting of section 18(1) is however not felicitous and poses a problem in that a situation may arise under it whereby the time limit within which the petition must be brought could run out before the declaration of the results. In other words, the payment of the money corruptly may have taken place more than twenty-one days before the declaration of the results by the Electoral Commission. This defect in the drafting of the subsection can render the right to petition accorded to an aggrieved party under this limb of section 18(1) illusory. The lawmaker therefore needs to revisit this provision. Nevertheless, this consideration does not alter our interpretation of section 18(1).

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:

declare that the election to which the petition relates is void;
declare that a candidate other than the member whose election is questioned was duly elected, or
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 results have been declared. Section 19(c) also contains the expression: “member whose election is questioned” which, to us, again implies that the member’s 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.

This conclusion is consistent with, and derives support from, the earlier Supreme Court decision in NPP v NDC [1999-2000] 2 GLR 506, where the Supreme Court similarly held that the election petition procedure can be triggered only after an election has been held. Acquah JSC, as he then was, said (at p. 547):

“Election petition under our law, therefore, arises after an election has been held and not before. In the instant cases the elections have not been held, neither have the second and third defendants been elected to Parliament. The validity of their election cannot therefore arise for same to be enquired into.”

Similarly, Atuguba JSC said (at pp. 567-8) that:

“As article 99 is plainly and obviously addressed by the Constitution, 1992 to a situation of an election had and gone, I cannot stretch it to cover the converse situation here, when an election has not even commenced, though other aspects of the electoral process are in full swing. I must emphasise that article 99 of the Constitution 1992 merely restricts itself to the right to question the validity of an election after it has in fact taken place. But that does not mean, as already earlier pointed out, that questions as to whether the person elected was prior to or at the time of his purported election qualified to be so elected, are irrelevant to an action thereunder. But an action under article 99 of the Constitution, 1992 aforesaid can only lie after and not before a parliamentary election.”

It should be explained that article 99 is the provision that vests jurisdiction in the High Court to hear and determine any question whether a person has been validly elected as a member of Parliament or the seat of a member has become vacant.

Though she was not ad idem with her brothers on all the issues in this case, on this issue of when an election petition could be brought, Bamford-Addo JSC, as she then was, agreed with them and, in explaining her position, said (at p. 517):

“Can an election petition be brought before or after an election and what is an election petition? It is any dispute as 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 same, namely the High Court as provided in section 16(1) and (2) of PNDCL 284. This section states as follows:

16(1) The validity of an election to Parliament may be questioned only by a petition brought under this Part.

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

(The emphasis is mine.) 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…”

This general approach to the challenge of an election that is adopted in our Constitution and electoral law is derived from the English approach to the questioning of elections. (See, for instance, Halsbury’s Laws of England, Third Edition, Volume 14 Elections Part 4).

A further general principle articulated by the majority in the NPP v NDC (supra) case which is of relevance to the case before us is that 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.

On the facts of this case, the applicant has succeeded in persuading this court that at the time of the filing of the interested party’s petition he had no cause of action yet, by the operation of section 18(1) of PNDCL 284. The High Court, in equal measure, lacked jurisdiction to investigate the premature petition launched by the interested party. Wrongful assumption of jurisdiction is, of course, a ground for the grant of certiorari. That is settled law that does not require the citation of authority.

Conclusion

Accordingly, certiorari lies to quash the High Court’s ruling in this case and it is hereby ordered that the ruling and the proceedings preceding it be brought before this court to be quashed and the same are hereby quashed. Furthermore, His Lordship Justice Francis Kwabena Opoku is hereby prohibited from any further hearing of this case.

S. K. DATE-BAH (DR)