THE REPUBLIC v. THE HIGH COURT, KOFORIDUA EX-PARTE DR KOFI ASARE
July 15, 2009
SUPREME COURT
GHANA
CORAM
- ATUGUBA, JSC
- ANSAH, JSC
- OWUSU (MS), JSC
- DOTSE, JSC
- BAFFOE-BONNIE, JSC
Areas of Law
- Constitutional Law
- Civil Procedure
- Administrative Law
July 15, 2009
SUPREME COURT
GHANA
CORAM
AI Generated Summary
This Supreme Court of Ghana ruling concerns the stalled 2008 Akwatia parliamentary election. The first interested parties—candidates including Baba Jamal Mohammed Ahmed—filed a writ in the Koforidua High Court alleging widespread irregularities and obtained an injunction, halting voting in six polling stations. The applicant, the NPP candidate for Akwatia, was joined and sought to strike out the writ for lack of jurisdiction. The High Court held a writ was competent, prompting this certiorari application. Multiple opinions by Justices Atuguba, Ansah, Owusu, Dotse, and Baffoe-Bonnie unanimously conclude that under PNDCL 284 and Article 99, challenges to a parliamentary election’s validity must proceed by petition only after declaration of results; an election is inchoate until declared. The Court emphasized constitutional imperatives ensuring timely constitution of Parliament, rejected procedural circumvention by writ, and held the High Court’s assumption of jurisdiction was wrongful and an error of law. Certiorari was granted, quashing the High Court’s ruling, and reaffirming the exclusive petition procedure and the need to avoid clogging electoral processes through premature litigation.
R U L I N G
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.
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 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 inter