SUMAILIA BIEBIEL v. ADAMU DARAMANI
March 18, 2010
COURT OF APPEAL
GHANA
CORAM
- AKAMBA, JA - (PRESIDING)
- MARFUL-SAU, JA
- HONYENUGA, JA
Areas of Law
- Constitutional Law
- Civil Procedure
March 18, 2010
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
On appeal from the High Court (Fast Track Division, Accra), the Court of Appeal considered whether a suit by a Bawku Central voter against the sitting MP—declared elected on 7 December 2008 and sworn in on 7 January 2009—was an election petition or a constitutional enforcement action. The respondent alleged the MP held a British passport and owed allegiance to another country, seeking a declaration of disqualification, an injunction restraining him from holding himself out as an MP, and an order compelling him to vacate his seat. Examining the reliefs, pleadings, and the legal consequences, the court held the action was an election petition because it sought to invalidate the election. Under Article 99(1)(a) and PNDCL 284, such challenges must be commenced by petition in the High Court, not by writ. Applying the principle that a statute’s special procedure displaces general rules, the court found the writ fundamentally defective. The appeal succeeded, and the writ was set aside.
AKAMBA, J.A: I had the privilege of a preview of the reasoned judgments of my two able and respected brothers, Marful-Sau and Honyenuga, JJ.A. I agree with the reasoning and conclusions arrived at. Short of repeating the very same arguments let me state briefly that the sum total of the reliefs sought by the Plaintiff/Respondent point to the nature of the action which is an election petition and therefore ought to have been commenced by petition and not by writ. I agree that the writ is incompetent in the very circumstance of this suit and is set aside.
(SGD)
J. B. AKAMBA
(JUSTICE OF APPEAL)
MARFUL-SAU, JA: This appeal raises one fundamental issue, which is whether or not the claim of the Plaintiff/Respondent in suit No.AHR 35/90 at the High Court (Fast Track Division) is an election petition, or enforcement action? If it is an election petition then on the authority of Yeboah v. J.H.Mensah (1998-99) SCGLR 492, then the proper forum is the High Court. On the other hand should the respondent claim be held to be an enforcement action under article 2 of the 1992 constitution then the forum obviously ought to be the Supreme Court. What then is the respondent claim before the court? The respondent writ is endorsed with the following reliefs, namely:
A declaration that the defendant is a holder of a British passport and
therefore owes allegiance to a country other than Ghana and is
therefore disqualified from holding the office of Member of Parliament
of the Republic of Ghana.
An injunction against the defendant restraining him from holding
himself out as a Member of Parliament and compelling him to vacate his seat in parliament.
3. Costs.
4. Any other reliefs as to this honourable court may deem meet.
The question is does these claims amount to an election petition? In addressing the issue I must state that the Supreme Court has in a chain of decisions defined what an election petition is. In the New Patriotic Party v. National Democratic Congress and others (2000) SCGLR 461 at page 472, Bamford-Addo JSC in answering the question what constitute an election petition delivered as follows:
‘’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 the same, namely the High Court as provided in section16(1)(2) of the Representation of the People Law, 1992 (PNDCL 284)’’
It is evident that the Representation of the People Law, to be referred