April 11, 2002
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The Court of Appeal of Ghana, per Wood JA (presiding), with concurrences by Farkye JA and OmariSasu JA, dismissed Samuel Nyimakans appeal from the High Court, Tamale, which had voided his election as Member of Parliament for the Wulensi Constituency. Fuseini Zakaria, a registered voter, had petitioned under Article 94(1)(b) and PNDCL 284, claiming Nyimakan neither hailed from Wulensi nor satisfied statutory residence qualifications. The Court of Appeal rejected a belated procedural challenge, holding the petitions English form valid under Order 74 or, at worst, a waivable irregularity under Order 70. On the merits, the court credited multiple contemporaneous documents listing Saboba as Nyimakans hometown and birthplace, admitted under the Evidence Decrees pedigree exception, and found he failed the residence criteria, particularly given his own nomination form disclaiming them. The appeal was therefore dismissed, affirming the High Courts nullification of the election.
JUDGMENT
WOOD, JA:
A notice published in the Gazette No 1 of January 5th 2000, declared the appellant, Samuel Nyimakan the duly elected Member of Parliament (MP) for the Wulensi Constituency in the Northern Region. Following this, the respondent instituted proceedings in the High Court Tamale for a declaration that the appellant was, at the time of his election not qualified to be elected as an MP and consequently that his purported election was void and must be set aside.
The action, which was brought under Article 94(1)(b) of our Constitution and S16 of the Representation of the People Law 1992 PNDCL 284 was based on three grounds namely that:
(i) “ He was not resident in the Wulensi Constituency, nor had been resident thereat for a total period of five (5) years in the ten (10) years immediately proceeding 7th December 2000.
(ii) Nyimakan Samuel does not hail from the Wulensi Constituency” (par 3 of the petition refers):
After hearing evidence, the learned trial judge found for the respondent and held that the appellant was not qualified under our electoral laws for election. He accordingly declared his purported election as an MP void. It is against this decision that this instant appeal has been lodged.
I would first deal with the legal ground, which has understandably, been described by the appellant as ‘being fundamental to the process of the court”. It is an additional ground of appeal we nevertheless, on an application brought by the appellant, allowed to be argued viva voce, well after the hearing of this appeal has been conducted and a date set for judgment. It states that:
“The procedure adopted in the presentation of the petition was not in conformity with the law governing petitions”.
This petition was not commenced by a writ of summons and accompanying statement of claim. The form used, was the English form by which petitions generally and election petitions specifically are presented. It was therefore instituted:
“In the matter of article 99 of the Constitution of Ghana
and
In the matter of a Parliamentary election for Wulensi Constituency held on 7th December 2000”.
In the main body of the petition was included the name and address of the petitioner and briefly and in summary form, the material facts on which the petitioner relied. Also included in a footnote are the names of persons required to be served with the petition, it included the appellant, the person who was naturally bound to be affected by the petition. It is this