NEW VISION PARTY v. ELECTORAL COMMISSION OF GHANA (EC)
November 5, 2012
HIGH COURT
GHANA
CORAM
- HIS LORDSHIP JUSTICE DENNIS D. ADJEI
Areas of Law
- Constitutional Law
- Administrative Law
- Civil Procedure
- Human rights Law
November 5, 2012
HIGH COURT
GHANA
CORAM
AI Generated Summary
A presidential aspirant sued the Electoral Commission of Ghana after the Commission refused to accept and register his presidential nomination forms, seeking declaratory and mandatory reliefs and inclusion on the 7 December 2012 ballot. He also applied for an interlocutory injunction to restrain the Commission from printing presidential ballot papers pending the suit. The Court, per Justice Dennis D. Adjei (JA), raised jurisdiction suo motu and examined whether the matter was properly brought as a fundamental rights enforcement under Article 33 or within the High Court’s general jurisdiction under Article 140 and Section 15 of Act 459. The Court held that fundamental rights enforcement must be initiated by application under Order 67 of C.I. 47, not by writ; thus, that avenue was rejected. It further held the High Court had jurisdiction since the suit did not challenge the validity of the presidential election under Article 64. Applying principles governing interlocutory injunctions—rights, balance of convenience, and public policy—the Court found national hardship and constitutional risk outweighed the Plaintiff’s personal hardship and refused the injunction.
The Plaintiff per his writ of summons is claiming for the following reliefs: -
a) A declaration that the refusal of the Defendant to accept the presidential forms of the Plaintiff is unlawful.
b) An order compelling the Defendant to accept the presidential nomination forms of the Plaintiff and same be registered.
c) A further order directing the Defendant to add the name of the Plaintiff to the presidential ballot papers for the 7th December, 2012, presidential election.
d) Any other order or orders as this Honourable Court may deem fit having regard to the circumstances of the case.
In pursuance to the writ the Plaintiff filed an application for Interlocutory Injunction to restrain the Defendant from printing the presidential ballot papers for the 7th December, 2012 election that will indicate the various candidates for the election pending the final determination of this suit.
The Defendant filed an affidavit in opposition on 25th October, 2012, resisting the Plaintiff’s application on the basis that the Defendant is discharging its constitutional mandate and if it is restrained from printing the presidential ballot papers for the 7th December, 2012 election, it would be detrimental to the whole nation.
The Court suo motu raised the issue about jurisdiction and invited both Counsel for the parties to address the Court. The Law is that an issue of capacity or jurisdiction can be raised by the Court suo motu See the case of Fosua Adu Doku vs. Dufie and Adu Blea Mensah [2009] SCGLR 310.
Lawyer for the Plaintiff submitted that the action was brought under the general jurisdiction of the High Court and the protection of fundamental human rights provided by Articles 146 and 33 of the constitution of the Republic of Ghana respectively. The Defendant, however, was of the opinion that the Court may assume jurisdiction over the matter because it is not an action which is challenging election of the president and the High Court has jurisdiction.
The Plaintiff referred the Court to Article 33 of the Constitution of the Republic of Ghana and submitted that the action is founded on fundamental human rights. Article 33 of the Constitution provides as follows: -
“1. Where a person alleges that a provision of this
Constitution on the fundamental human rights and freedoms has been, or is being or is likely to be contravened in relation to him, then, without prejudice to any other action that is lawfully available, that person may apply to the High Court for r