NEW PATRIOTIC PARTY v. NATIONAL DEMOCRATIC CONGRESS AND OTHERS PDF

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NEW PATRIOTIC PARTY

vs.
NATIONAL DEMOCRATIC CONGRESS AND OTHERS
[SUPREME COURT, ACCRA]
[1999-2000] 2 GLR 506 DATE: 21ST NOVEMBER, 2000
COUNSEL:
HON MARTIN AMIDU, DEPUTY ATTORNEY-GENERAL, (WITH HIM E ADDO,
SOLICITOR-GENERAL AND ANIM, CHIEF STATE ATTORNEY) FOR THE
APPLICANT.
HON NANA AKUFFO-ADDO (WITH HIM KWAME BOAFO AKUFFO) FOR THE
PLAINTIFF-RESPONDENT
CORAM:
BAMFORD-ADDO, AMPIAH, KPEGAH, ACQUAH AND ATUGUBA JJSC
JUDGEMENT
Bamford-Addo JSC.
The plaintiff in this case, a registered political party contesting the 2000 Parliamentary
and Presidential Elections, filed a writ and accompanying statement of case in this court
for:
“(i) A declaration that the decision by the first defendant to put forward the second and
third defendants as candidates of the first defendant in the 2000 Parliamentary Elections
for Asante Akyem North and Bosomtwe Constituencies, respectively, is inconsistent with
and in contravention of the Constitution, 1992, in particular article 94(3)(b) thereof and
is void and of no effect.
(ii) An order of perpetual injunction restraining the first defendant from putting forward
the second and third defendants as is its parliamentary candidates in the 2000 Elections in
so far as they are ineligible to be members of Parliament.
(iii) An order of perpetual injunction restraining the second and third defendants from
standing as parliamentary candidates in the 2000 Elections in so far as they are ineligible
to be members of Parliament.
(iv) Such other orders as this court may deem meet.”
The gist of the plaintiff’s case is that a publication appeared in the State-owned
newspaper The Ghanaian Times of 6 June 2000 at page 10 thereof to the effect that the
second and third defendants are civil servants working at the Ministries of Finance and
Mines and Energy respectively, and that the first defendant is reported to have decided
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to approve their nomination as parliamentary candidates in the November 2000 Elections

for the Asante Akyem North and Bosomtwe Constituencies, respectively; and, further,
that they were actively campaigning as such. It is to be noted that in June this year the
nomination exercise for parliamentary candidates had not even commenced. It is the case
of the plaintiff that by virtue of article 94(3)(b) of the Constitution, 1992 a member of the
civil service is not eligible to be a member of Parliament and therefore the approval by
the first defendant for the future nomination of the second and third defendants as
parliamentary candidates, is a gross and patent violation of the Constitution, 1992, in
particular article 94(3)(b) thereof and is accordingly null and void and of no effect.
In my view however the approval to the future nomination is really a mere intent and I
fail to see how an intention to do something in the future without more, can be equated
to the performance of an act which could be relied on as a basis for charging a person
with breach of the Constitution, 1992. Article 2(1)(b) of the Constitution, 1992 requires the
doing of something—an “act” which is inconsistent with the Constitution, 1992 before
action can be taken against the defendant. Article 2(1)(b) of the Constitution, 1992
provides thus:
“2. (1) A person who alleges that—
(b) Any act or omission of any person; is inconsistent with, or is in contravention
of a provision of this Constitution, may bring an action in the Supreme Court for
a declaration to that effect.”
As can be perceived, it is the act of the defendant, not his intention, which is the
prerequisite to the invocation of a constitutional action under article 2(1)(b) of the
Constitution, 1992. Therefore the plaintiff would have no “cause of action” against the
defendant who has done nothing unlawful or unconstitutional on 8 June 2000; and under
such circumstance the action would be dismissed as premature since the court would
have no jurisdiction over such a matter where there is no cause of action. “Cause of
action” has been defined in Halsbury’s Laws of England (3rd ed), Vol 1, at para 9 as
follows:
“The popular meaning of the expression ‘cause of action’ is that particular act on the part
of the defendant which gives the plaintiff his cause of complaint, Jackson v Spittal (1870)
LR 50 C. p542 . . . Strictly speaking every fact which is material to be proved to entitle the
plaintiff to succeed, every fact which the defendant would have a right to traverse Cook v
Gill (1873) LR 8 CP 107 and see Read v Brown (1888) 22 QBD 128, CA. Wherein Lord
Esher MR defined a ‘cause of action’ as every fact which it would be necessary for the
plaintiff to prove if traversed, in order to support his right to the judgment of the Court.”
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In this present case, the fact to be proved by the plaintiff in order to obtain judgment from
the court is proof of the existence of an “act” or the doing of something by the defendant
which is inconsistent with the Constitution, 1992. The factual situation at the time of filing
the plaintiff’s writ is that there was no “act or omission” as defined in section 32 of the
Interpretation Act, 1960 (CA 4) attributable to defendants, which would amount to a
contravention of the Constitution, 1992. The intention of the first defendant to nominate
the second and third defendants in the future is not an act but only an intention which is
not justiciable; nor does a mere intent contravene the Constitution, 1992. For this reason,
the plaintiff on 8 June 2000 had no “cause of action” to enable them to sue the defendants:
see Kennedy v Thomas [1894] 2 QB 759 where it was held:
“that when payment of a bill of exchange is refused by the acceptor at any time on the last
day of grace, the holder, though he is entitled at once to give notice of dishonour to the
drawer and the endorsees, has no cause of action against either the acceptor or the other
parties to the bill until the expiration of that day. An action brought by the holder against
the acceptor on the last day of grace must be dismissed as premature. Wells v Giles 2 (Gale,
209) approved and followed.”
Furthermore, it is settled that the existence of a subsequent fact would not alter the
character of a premature writ filed before a cause of action had actually arisen and
accrued to the plaintiff. In Attorney-General v Avon Corporation (1863) 3 De GJ & Sm
637, Lord Justice Turner stated as follows:
“Now take it to be a well settled rule of court that where there has been no title to sue at
the time of filing an original bill or information, a decree cannot be founded upon a right
of suit subsequently acquired and brought forward by a supplementary bill. The
substratum falling the superstructure falls also, and I think this rule must apply not only
in cases where the title to sue in respect of the whole matter of the suit is acquired
subsequently to the filing of the original bill but also in cases where the title to sue in
respect of any part of the matter of the suit is so acquired, for the principle would seem to
be this, that there must be a right of suit when the suit is commenced—and a supplemental
bill is not commenced but the continuance of the suit. If therefore the case rested upon this
ground alone I should think that the declaration contained in this decree and the inquiry
founded upon it could not be maintained.”
Therefore the subsequent change in the factual situation, namely the subsequent
nomination of the second and third defendants would not affect the incompetence of the
original writ filed before a cause of action had arisen and, accrued to the plaintiff. The
fact remains that the writ was invalid as filed prematurely and the court has no
jurisdiction over such a matter.
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But the fate of this case does not rest on this point alone. The claim of the plaintiff in relief
(i) is for:
“A declaration that the decision by the first defendant to put forward that second and third
defendants as candidates of the first defendant in the 2000 Parliamentary Elections for
Asante Akyem North and Bosomtwe Constituencies is inconsistent with and in
contravention of the Constitution, 1992 in particular article 94(3)(b) thereof and is
accordingly null and void and of no effect.”
(The emphasis is mine.) It is apparent that the plaintiff is equating intention with
actionable “act” which is quite absurd. Because a mere intention alone without any
accompanied act or omission, cannot be an act which is capable of being declared “null
and void and of no effect.”
In the case of the enforcement of the operative parts of the Constitution, 1992 the
defendant must be found to have done something which is inconsistent with a particular
enforceable provision of the Constitution. But article 94(3)(b) of the Constitution, 1992 is
not enforceable per se since it only sets out the qualification or eligibility of a member of
Parliament. But article 94(3)(b) when considered together by the High Court with the
relevant provisions of the Representation of the People Law, 1992 (PNDCL 284) and the
Public Elections Regulations), 1996 (CI 15), in an election petition, would, depending on
the result of such trial, be enforced indirectly through the order made by the court such
as an order nullifying an election on ground of disqualification of a person who is
ineligible to be a member of Parliament.
An election petition however can only be dealt with by the High Court which has the
constitutional jurisdiction over such a case. According to article 99(1)(a) of the
Constitution, 1992:
“99 (1) The High Court shall have jurisdiction to hear and determine any question
whether—
(a) a person has been validly elected as a member of Parliament or the seat of a
member has become vacant.”
(The emphasis is mine.) The provision of this article was interpreted by the Supreme
Court in the case of Yeboah v JH Mensah [1998-99] SC GLR 492 where the majority of the
court held that after an election had been held, an election petition contesting the validity
of same lies to the High Court which alone has jurisdiction to entertain such an election
petition and not by resort to the enforcement jurisdiction of the Supreme Court. In the
above mentioned case it was held, as stated in the headnote, that:
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“the High Court, and not the Supreme Court, was the proper forum under article 99(1)(a)
of the Constitution and Part IV of the PNDCL 284 for determining the plaintiff’s action,
which was, in substance, an election petition to challenge the validity of the defendant’s
election to Parliament. The Plaintiff could therefore not ignore the provisions of article
99(1)(a) of the 1992 Constitution, which had provided for a specific remedy at the High
court for determining challenges to the validity of a person’s election to Parliament, and
resort to the enforcement jurisdiction of the Supreme Court under article 2(1) and 130(1)
of the Constitution. Edusei v Attorney-General [1996-97] SC GLR 1 and on review [1998-
99] SC GLR 753 followed. Gbedemah v Awonoor-Williams (1970) 2 G & 438, SC
criticised”
Acquah JSC also noted in support of the majority position at 544-545 that:
“For, once the Constitution itself specifically provides a remedy under article 99(1) for
resolving challenges to the validity of a person’s election to Parliament, it is that remedy
which must be pursued; because if it was the intention of the framers of the Constitution
to let the general enforcement jurisdiction of the Supreme Court to be resorted on the
violation of every provision of the Constitution, they would not have provided a specific
remedy for specific matters like article 99(1). This conclusion is in accord with two previous
decisions of this court in the same case reported as Edusei v Attorney-General [1996-97]
SC GLR 1; and on review in [1998-99] SC GLR 753. In both decisions, this court by a
majority, held, in effect that because article 33(1) of the 1992 Constitution, provided a
specific remedy for redressing violations of human rights provisions, the Supreme Court’s
enforcement jurisdiction could not be resorted to in the enforcement of human rights
provisions.”
Nana Akuffo-Addo, opposing the Attorney-General’s preliminary objection, sought to
distinguish the JH Mensah case (supra) from this present one. According to him, the JH
Mensah case (supra) was not relevant here since that was an election petition presented
after an election had already been held, whereas in the case before us, no election had as
yet taken place. He submitted that the plaintiff is seeking the enforcement jurisdiction of
the court in respect of the provisions of article 94(3)(b) of the Constitution 1992. But this
is exactly what the Supreme Court in the JH Mensah case (supra) decided against. Relying
on that case, which in my view was properly decided, it is also my opinion that it is only
the High Court which has jurisdiction to hear and determine the validity of an election
on various grounds, including allegation of qualification or in eligibility to be a member
of Parliament. As said earlier, this is the proper procedure to be followed for the eventual
enforcement of article 94(3)(b) of the Constitution, 1992. Semble the enforcement of
provisions relating to the fundamental human rights and freedoms is given to the High
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Court under articles 33 and 140(2) of the Constitution, 1992: See the JH Mensah case
(supra), per dictum of Acquah JSC as stated above.
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.
(2) 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—to be referred to later herein. As to the issue of the ineligibility of a
person nominated for election as a member of Parliament, rule 7(4) of the Public Elections
Regulations, 1996 provides that: “Nothing in this regulation shall prevent the validity of
a nomination being questioned on an election petition.” This, in my opinion, means that
a challenged nomination of a member of Parliament for election on the ground of
ineligibility, as in this case, can be brought up only in an election petition after an election,
not before in an election petition at the High Court; but not in action brought under our
original jurisdiction for enforcement of the Constitution, of the Constitution, 1992
particularly article 94(3)(b). It is to be noted that this article only sets out the qualification
for parliamentary candidates for election, which election is handled by only the Electoral
Commission and which issue or dispute is to be handled in an election petition at the
High Court.
Section 20(1)(d) of PNDCL 284 also provides that:
“20 (1) The election of a candidate shall be declared void on an election petition if the High
Court is satisfied—
(d) that the candidate was at the time of his election a person not qualified or a person
disqualified for election.”
Depending on the decision of that court, the validity or otherwise of the particular
election would be declared. The reliefs which could be granted are stated in section 19 of
PNDCL 284 are as follows:
“19. After hearing an election petition the High Court may make any of the following
orders—
(a) declare that the election to which the petition relates is void;
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(b) declare that a candidate other than the member whose election is questioned was duly
elected; or
(c) dismiss the petition and declare that the member whose election is questioned was duly
elected.”
So that if an allegation of ineligibility under article 94(3)(b) of the Constitution 1992 is
made and proved, the High Court would declare that the election of that particular
person is void. As seen, the nomination cannot be declared void by the Supreme Court
either before an election or after same has been held. But this is exactly what the plaintiff
is seeking from this court. The procedure provided in the Constitution, 1992 and the law
and regulation dealing with elections, namely PNDCL 284 and CI 15 are used for the
enforcement of the Constitution in conformity with article 94(3)(b) of the Constitution,
1992. Resort to the Supreme Court under its enforcement jurisdiction is not the proper
procedure; and as held in the JH Mensah case (supra) the Supreme Court has no
jurisdiction over such election petitions, as I have explained in detail above.
In conclusion this court’ enforcement jurisdiction under article 2(1)(b) and 130(1)(a) of the
Constitution, 1992 was wrongly invoked in a case such as this. For all the above reasons,
the preliminary objection of the defendants to jurisdiction should be upheld. Accordingly
I would dismiss this case.
Ampiah JSC. On 15 November 2000, this court by a majority of three to two ruled on a
preliminary objection to jurisdiction, that this court has no jurisdiction to determine the
issues raised in a writ of summons (suit No 3/2000) brought by the plaintiff. I now
proceed to give my reasons for dissenting from the majority decision.
By a writ of summons, the plaintiff, the New Patriotic, Party, one of the political parties
contesting the 2000 Parliamentary and Presidential Elections in Ghana, invoked the
original jurisdiction of this court under article 2(1)(b) of the Constitution, 1992 for the
determination of the following reliefs:
“(i) A declaration that the decision by the first defendant to put forward the second and
third defendants as candidates of the first defendant in the parliamentary elections for
Asante Akyem North and Bosomtwe constituencies respectively, is inconsistent with and
is in contravention of the Constitution, 1992, in particular article 94(3)(b) thereof, and is
accordingly null, void and of no effect.
(ii) An order of perpetual injunction restraining the first defendant from putting forward
the second and third defendants as its parliamentary candidates in the 2000 elections in so
far as they are ineligible to be members of Parliament.
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(iii) An order of perpetual injunction restraining the second and third defendants from
standing as parliamentary candidates in the 2000 elections in so far as they are ineligible
to be members of Parliament.”
The first defendant is also a political party contesting the 2000 Parliamentary and
Presidential Elections.
The second and third defendants are alleged to be candidates proposed by the first
defendant for the parliamentary elections in their respective constituencies. The fourth
defendant, the applicant herein, is the chief legal adviser to the Government of Ghana.
The defendants contended in support of their preliminary objection that:
“(a) The plaintiff’s writ and statement of case disclose no cause of action premised on
articles 2(1)(b),94(3)(b) and 130(1)(a) of the Constitution, 1992.
(b) The plaintiff’s writ and statement of case constitute an invitation to the court to
speculate whether the second and third defendants will qualify for nomination as
parliamentary candidates when the electoral commission issues a writ of election and gives
notice of nomination pursuant to the Public Elections Regulations, 1996 (CI 15).
(c) Article 94(3)(b) of the Constitution, 1992 is clear and unambiguous and does not call
for interpretation or enforcement.
(d) The plaintiff’s action is seeking for an advisory opinion from the court.”
The plaintiff-respondent (hereinafter called the plaintiff) opposed the application. In its
affidavit in opposition to the application, the plaintiff contended that the action is
competent as it seeks to enforce article 94(3)(b) of the Constitution, 1992. Counsel for the
plaintiff argued further that: “The clear intent of the article is to preserve, within the
context of a multi-party democracy, the neutrality of the public service, by prohibiting
public officers’ involvement in partisan political activities.” He continued:
“This position is reinforced by section 26 of the Political Parties Act, 2000 (Act 574) which
governs the operations of political parties . . . This is a grave violation of the Constitution
for the first defendant to put forward the second and the third defendant as parliamentary
candidates for the 2000 elections, and that . . . the Supreme Court has full jurisdiction to
deal with this matter, it being indeed the only court with jurisdiction to do so.”
At the hearing of the application, it came to light that the second defendant had retired
from the civil service, and in fact both the second and third defendants have been
nominated officially as candidates to contest the 2000 elections at their respective
constituencies, namely Asante Akyem North and Bosomtwe. Counsel for the plaintiff
informed the court accordingly that he did not intend to pursue the action against the
second defendant. The third defendant however claims that he is not one of the persons
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envisaged under the provisions of article 94(3)(b) of the Constitution, 1992 and that
although he is a public officer, he is eligible to be elected as a member of Parliament. I
will therefore concern myself with the third defendant only.
Article 94(3)(b) of the Constitution, 1992 provides:
“(3) A person shall not be eligible to be a member of Parliament if he—
(b) is a member of the Police Service, the Prisons Service, the Armed Forces, the
Judicial Service, the Legal Service, the Civil Service, the Audit Service, the
Parliamentary Service, the Statistical Service, the Fire Service, the Customs, Excise
and Preventive Service, the Immigration Service, or the Internal Revenue Service.”
Without prejudice to the merits in the action, some of the issues that may have to be
determined, if the court should hold that it has jurisdiction to entertain the action, are:
(i) What are the categories of persons envisaged under article 94(3)(b) of the Constitution,
1992? Are all public officers affected?
(ii) From what kind of conduct must the person categorised under article 94(3)(b) of the
Constitution, 1992 refrain?
(iii) what is meant by active participation in politics?
(iv) At what stage of the election process can one be said to be actively participating in
politics?
(v) Is the active participation in politics of persons under article 94(3)(b) of the
Constitution, 1992 inconsistent with or in contravention of the Constitution, 1992?
Of course these issues and others can only be determined by the court, if it is properly
seised with the action, that is if it has jurisdiction. It is wrong for a court to proceed to
determine the merits in a case when it has not satisfied itself that it has jurisdiction in the
matter; such a conduct may prejudice subsequent proceedings in the same matter.
The conduct of public elections and referenda is vested in an Electoral Commission under
article 45 of the Constitution, 1992. It is the responsibility of the commission by a
constitutional instrument to make regulations for the effective performance of its
functions under the Constitution, 1992 or any other law, and in particular, for the
registration of voters, the conduct of public elections and referenda, including provision
for voting by proxy: vide article 51 of the Constitution, 1992. In pursuance of this power,
the Electoral Commission has made the Public Elections Regulations, 1996 (CI 15). Apart
from regulation 7(3) of CI 15 which gives power to the returning officer to decide on the
validity or otherwise of a nomination paper, there is no specific provision in CI 15 which
deals with the validation or otherwise of a nomination before or after elections. Even
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under regulation 7(3) of CI 15, the returning officer “shall endorse and sign on the
nomination paper the fact and the reasons for his decision, and inform the commission
accordingly and the commission shall refer the matter with its observation on it to the
Attorney-General.” One may ask, after this what next? Of course the validity of a
nomination can be questioned on an election petition: vide regulation 7(4) of CI 15.
Only the Representation of the People Law, 1992 (PNDCL 284) provides a procedure for
challenging elections. Section 16 of Act 284 provides:
“16. (1) The validity of an election to Parliament may be questioned only by a petition
And section 20(1)(d) PNDCL 284 provides that:
“20. (1) The election of a candidate shall be declared void on an election petition, if the High
Court is satisfied—
(d) that the candidate was at the time of his election a person not qualified or a
person disqualified for election.”
See also article 91 of the Constitution, 1992. The law, as could be seen, gives exclusive
jurisdiction to the High Court to decide on election petitions. These petitions can be
brought only after an election has been held as the law requires under section 18(1) of
PNDCL 284 that:
“18. (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, except that a
petition questioning an election on an allegation of corrupt practice and specifically
alleging a payment of money or other award to have been made by the person whose election
is questioned or to have been made on his behalf to his knowledge, may be presented within
twenty-one days after the date of the alleged payment.”
What happens then to allegations made prior to the election, which allegations are not
mere election offences? In the case of Yeboah v JH Mensah [1998-99] SC GLR 492, this
court held, inter alia, by a majority that since the matter related to events of an election
which had already been conducted, the proper forum for adjudication under the law was
the High Court. That case is therefore distinguishable from the instant case where
elections are yet to be conducted.
Has the plaintiff a cause of action? That issue can only be determined where the court has
jurisdiction to entertain the matter. In its claim, the plaintiff asks for orders of injunction.
As a general rule, it is premature for the plaintiff to come to the court for an injunction
before a complete cause of action has accrued. However if the danger be substantial and
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imminent, an injunction will be allowed. In Ripon (Earl) v Hobart (1834) 3 My & K 169
Lord Brougham observed:
“Proceeding upon practical views of human affairs, the law will guard against risks which
are so imminent that no prudent person would incur them, although they do not amount
to absolute certainty of damage. Nay, it will go further, and according to the same practical
and rational view, and balancing the magnitude of the evil against the chances of its
occurrence, it will even provide against a somewhat less imminent probability in cases
where the mischief, should it be done, would be vast and overwhelming.”
The plaintiff complains of activities by the defendants which conflict with the
Constitution, 1992; a complaint which in my opinion the plaintiff can bring an action quia
timet, to prevent. In paragraph (4) of the plaintiff’s statement of its case, it is averred:
“(4) In a publication, dated 6 June 2000, of the national state-owned daily newspaper, the
Ghanaian Times, at page 10 thereof, the first defendant is reported to have approved the
nomination of the second and third defendants as parliamentary candidates of the first
defendant in the 2000 elections for the Asante Akyem North and Bosomtwe constituencies
respectively. The second and third defendants are actively campaigning as such.”
This has not been denied. Also, article 288 of the Constitution, 1992 defines a “public
officer” under chapter 24 of the Constitution, 1992 as a “person who holds a public office”
and a “public office” has been defined under article 295 of the Constitution, 1992 as
including “an office the emoluments attached to which are paid directly from the
Consolidated Fund or directly out or moneys provided by Parliament and an office in a
public corporation established entirely out of public funds or moneys provided by
Parliament” Article 286(5) of the Constitution, 1992 lists certain persons in publics offices.
These include: (a) the President; (b) the Vice-President; (c) the Speaker of Parliament, the
Deputy Speaker and a member of Parliament (d) Ministers of State or deputy ministers;
and (e) the Chief Justice, Justices of the Superior Court of Judicature, etc.
The third defendant claims to be a public officer only, but not within the category of
persons mentioned under article 94(3)(b) of the Constitution, 1992 with regard to
eligibility to be members of Parliament. All the persons mentioned under article 94(3)(b)
of the Constitution, 1992 are public officers by definition; but not all public officers are
named under article 94(3)(b) of the Constitution, 1992. Applying the ejusdem generis rule
of interpretation, can it be said that the third defendant as a public officer is one of the
officers caught under article 94(3)(b) of the Constitution, 1992 and is therefore precluded
from actively participating in politics? This calls for interpretation, of the article. The
contention of the applicant that article 94(3)(b) of the Constitution, 1992 is clear and does
not call for interpretation, by itself, raises a question of interpretation for this court to
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determine; it calls for the exercise of this court’s interpretative jurisdiction to determine
whether or not article 94(3)(b) of the Constitution 1992 covers such persons as the third
defendant. If the provision is clear the court will say so; if not, the court will proceed to
interpret it. This can be done only where this court is seised with jurisdiction. On the issue
of interpretation also, the question whether “eligible” is the same as “qualified” was
raised.
Quite apart from the issue of interpretation, the question whether the conduct of the third
defendant is consistent with or is in contravention of the provisions of article 94(3)(b) of
the Constitution 1992 has been raised. Since the High Court has exclusive jurisdiction in
determining election petitions and the instant action is not an election petition, where
should an aggrieved person or complainant go? Must he wait while the third defendant
continues with the alleged offending activities, assuming the latter’s conduct is unlawful?
I do not consider the action to be speculative. Neither is it an attempt to seek an advisory
opinion of the court.
Article 2(1) under which the plaintiff brought his action provides:
“2. (1) A person who alleges that—
(b) any act or omission of any person;
is inconsistent with, or is in contravention of a provision of this Constitution, may bring
an action in the Supreme Court for a declaration to that effect.”
And for the purpose of such a declaration, the Supreme Court under article 2(2) of the
Constitution 1992 shall “make such orders and give such directions as it may consider
appropriate for giving effect, or enabling effect to be given, to the declaration so made.”
Furthermore, article 130(1) of the Constitution, 1992 provides emphatically and in no
uncertain terms that:
“130. (1) Subject to the jurisdiction of the High Court in the enforcement of the
Fundamental Human Rights and Freedoms are provided in article 33 of this Constitution,
the Supreme Court shall have exclusive original jurisdiction in—
(a) all matters relating to the enforcement or interpretation of this Constitution.”
And article 130(2) of the Constitution 1992 goes on to emphasize that:
“(2) Where an issue that relates to a matter or question referred to in clause (1) of this
article arises in any proceedings in a court other than the Supreme Court, that court shall
stay the proceedings and refer the question, of law involved to the Supreme court for
determination; and the court in which the question arose shall dispose of the case in
accordance with the decision of the Supreme Court.”
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It is my considered opinion that in the particular circum-stances of this matter, the only
court with jurisdiction to determine the issues raised is the Supreme Court. This court is
therefore properly seised with this action. As to the merits, the court would have to
determine them after hearing the case. It was for the above reasons that I dismissed the
preliminary objection to jurisdiction.
Kpegah JSC. My lords, may I crave indulgence to digress and preface this ruling with a
personal statement which I am constrained to make. In an article entitled “Dissents in
Courts of Last Resort: Tragic Choices?” published in the Oxford Journal of Legal Studies,
Vol 2, Issue 2, Summer 2000, p 221, John Alder at said p 246 of dissenting opinions:
“The knowledge that a dissent will be published helps to ensure that all members of the
panel are treated equally, and that no point of view has been suppressed. Thus dissent, far
from undermining collegiality, in this respect reinforces it. This can be put in the wider
context of support for majoritarian decision making, as opposed to unanimity. As Waldron
puts it, ‘given a need for some sort of collective resolution of disagreement, majoritarianism
is the mode that is the most conducive to equality, human dignity and fairness of
participation. Majority decision-making does not require anyone’s view to be played—
down or hushed up because of the fancied importance of consensus.”
The learned author commends dissent because according to him:
“. . . it strengthens public confidence in the judiciary by helping to sharpen the reasoning
of the majority, ensuring that decisions are fully considered and independent and that
individual decisions makers are accountable in the sense that they are seen to be accepting
the burden of judgment rather than taking the easy way out and follow others.”
A dissenting opinion helps to focus and clarify our understanding of the issues. Apart
from the intrinsic value of a dissent, the reasoning underlying a decision can sometimes
best be understood in the light of a contrary view. It also exposes weakness in the laws
so that today’s dissent might become tomorrow’s majority or be adopted by the
legislature. Like the European Court of Human Rights and the International Court of
Justice, dissent is an integral feature of our system. It is therefore a matter of regret that
we were not able to hold a formal conference to discuss fully our decision in Yeboah v JH
Mensah [1998-99] SC GLR 492 which the defendants are now relying on to oust our
jurisdiction, while the plaintiffs tried to distinguish it. So that either the plaintiff or the
defendant is misapprehending the ratio of the case, raising the need for clarification. The
case therefore needed a frank and open discussion in other to discover the ratio and settle
the law in this area once and for all. But since this was not to be, and we had to approach
the case individually, 1 can only assume the burden of my own judgment much as regret
the non-attendance of conference by some of us.
13
On June 2000, the Ghanaian Times a national daily newspaper, carried a news item in one
of its pages to the effect that the National Democratic Congress, the ruling party
(hereinafter referred to as the first defendant) had approved the nomination of one Kofi
Opoku-Manu, a director of the Ministry of Finance (hereinafter referred to as the second
defendant, as its parliamentary candidate for the Asante Akyem North constituency. The
same publication also alleged that one Joseph Oteng-Adjei, a chief director of the Ministry
of Mines and Energy (hereinafter referred to as the third defendant) has been approved
as the first defendant’s parliamentary candidate for the Bosometwe Constituency in the
Ashanti Region. Two days after this publication, the plaintiff, the New Patriotic Party,
took out a writ in this court seeking the following reliefs:
“(1) A declaration that the decision of the first defendant to put forward the second and
third defendants as candidates of the first defendant in the 2000 Parliamentary Elections,
for Asante Akyem North and Bosomtwe Constituencies, respectively is inconsistent with
and in contravention of the Constitution, in particular article 94(3)(b) thereof, and
accordingly null, void and of no effect.
(2) An order of perpetual injunction restraining the first defendant from putting forward
the second and third defendant as its parliamentary candidates in the 2000 Election in so
(3) An order of perpetual injunction restraining the second and third defendants from
standing as parliamentary candidates in the 2000 Election in so far as they are ineligible
(4) Such other orders as this court may deem meet.”
The Attorney General was joined as the fourth defendant.
The basis of the action therefore is that by the publication in the Ghanaian Times the first,
second and third defendants have done an “act” in terms of article 2(1)(b) of the
Constitution, 1992 which infringes article 94(3)(b) of the said Constitution, 1992. This
article reads:
(b) is a member of the Police Service, the Prisons Service, the Armed Forces, the Judicial
Service, the Legal Service, the Civil Service, the Audit Service, the Parliamentary Service,
the Statistical Service, the Fire Service, the Customs, Excise and Preventive Service, the
Immigration Service, or the Internal Revenue Service...”
The allegation is that both the second and third defendants belong to the civil service and
their approval and so-called nomination is against article 94(3)(b) of Constitution, 1992.
14
This serious allegation is contained in paragraphs (3)–(6) of the statement of case filed by
the plaintiffs. It states:
“(3) The second and third defendants are senior civil servants working at the Ministries of
Finance and Mines & Energy as Chief Director and Director of Energy respectively. The
fourth defendant is the principal legal adviser to the government and a statutory defendant
in all constitutional actions.
(4) In a publication dated 6 June 2000, of the national state-owned daily newspaper, The
Ghanaian Times, at p 10 thereof, the first defendant is reported to have approved the
defendant in the elections of 2000 for the Asante Akyem North and Bosomtwe
Constituencies respectively. The second and third defendants are actively campaigning as
such.
(5) By article 94(3)(a) of the Constitution, a member of the civil service is not eligible to be
a member of Parliament.
(6) The plaintiff says that the approval of the second and third defendants, who are civil
servants, as parliamentary candidates of the first defendant is a gross, patent violation of
the Constitution, 1992, in particular article 94(3)(a) thereof and is according null, void
and of no effect.”
The Attorney-General, the fourth defendant, in his statement of case does not deny the
status of the second defendant as a civil servant who therefore is covered by article
94(3)(b) of the Constitution, 1996; he however denied that the third defendant is so
covered, not being a civil servants but a public officer. In paragraphs (6)–(13) of his
statement of case, the fourth defendant made some pertinent averments. This is what he
averred in the said paragraphs:
“(6) The fourth defendant says. . . that the nomination of candidates for parliamentary
elections under the Constitution, 1992 is governed by article 51 of the Constitution, 1992,
section 11 of the Representation of the People Law, 1992 (PNDCL 284) and regulations
4,6,7 and of the Public Elections Regulations 1996 (CI 15)
(7) The fourth defendant will contend that the mere declaration of intent by the first
defendant to nominate the second and third defendants as parliamentary candidates in
accordance with regulation 4 of the Public Election Regulations 1996 (CI 15) cannot be a
violation of article 94(3)(b) of the Constitution, 1992 or any other law.
(8) The fourth defendant says that the plaintiff has no cause of action against the defendants
as the Electoral Commission has neither issued a writ of election to a returning officer nor
issued a notice of election specifying the day, place and time of the nomination of candidates
15
and the day when poll is to be taken for elections in the year 2000 as required by regulations
2 and 3 of the Public Elections regulations, 1996 (CI 15).
(9) The fourth defendant says that the first defendant cannot be compelled to nominate and
register the second and third defendants as its parliamentary candidates for the Asante
Akyem North and Bosomtwe constituencies respectively when the Electoral Commission
opens nominations for parliamentary candidates in accordance with law.
(10) Consequently the assertion that the first defendant has approved the nomination of
the second and third defendants is an invitation to the court to speculate on who the first
defendant will indeed nominate when the Electoral commission invites nominations for
parliamentary candidates for the year 2000 Elections.
(11) The fourth defendant contends that the plaintiff’s relief for an order of perpetual
injunction restraining the second and third defendants from standing as parliamentary
candidates in the 2000 Elections is misconceived as the second and third defendants have
not offered themselves for nominations and have not been nominated as parliamentary
candidates as required by regulations 4, 6 and 7 of the Public Elections Regulations, 1996
(CI 15).
(12) The defendant says further that the reliefs for perpetual injunction against the first,
second and third defendants are an invitation to the court to speculate on the intentions of
the first, second and third defendant and ought to be dismissed in limine.
(13) The fourth defendants maintain that by virtue of the forgoing averments this court
has no jurisdiction to entertain the plaintiff’s writ and statement of case against the
defendants.”
The fourth defendant formally filed a motion asking the court to decline jurisdiction and
set aside the plaintiff’s writ and statement of case for disclosing no cause of action. It is
this application that is the subject matter of the present ruling. In the course of hearing
the motion, it came out that the second defendant, Mr Kofi Opoku-Manu, has resigned
from the civil service and filed his nomination papers to stand for election on the ticket
of the National Democratic Congress in the forthcoming elections. The plaintiff there and
then withdraw the case against him but maintained the action against the third defendant
who has since filed his nomination papers and yet still declines to resign on the ground
that he is not a civil servant but a public officer and therefore not covered by article
94(3)(b) of the Constitution, 1992.
In arguing his motion, the learned Deputy Attorney-General, Mr Martin Amidu, urged
three main points upon us. These points can be summarized as follows:
“(i) On the authority Yeboah v JH Mensah [1998-99] SC GLR 492 our enforcement
jurisdiction has been wrongly invoked in respect of article 94(3)(b) and that the only way
16
the plaintiff could seek any relief is through an election petition under article 99(1)(a) of
the Constitution, 1992 and Part IV of the Representation of the Peoples Law, 1992
(PNDCL 284).
(ii) That the writ and the plaintiff’s statement of case disclose no cause of action against
the defendants since the publication which provoked the action could at best be described
as a declaration of intent and nothing more.
(iii) Finally, that the action is therefore speculative because no steps could have been taken
in the direction anticipated, as no writ of election had been issued under regulations 2 and
3 of the Public Elections Regulations, 1996 (CI 15).”
Replying, Nana Akufo-Addo, learned counsel for the plaintiff, argued that the
enforcement jurisdiction of this court has been properly invoked since it is only the
Supreme Court which can, in exercising its exclusive original jurisdiction under article
2(1) and 130(1)(a) of the Constitution 1992, enforce the provisions of article 94(3)(b) of the
Constitution. It would, therefore, be preposterous, so he submitted, for anyone to suggest
that this court lacks jurisdiction to enforce any provision of the Constitution, 1992 except
those relating to individual rights, which by virtue of article 33 is enforceable by the High
Court as a court of first instance. Counsel for the plaintiff distinguished the JH Mensah
case (supra) by submitting that that case was concerned with an election petition since
elections had been held before the actions was initiated and the purpose for the writ was
to have the election for Mr JH Mensah as the member of Parliament for Sunyani East
annulled, with his consequent removal from Parliament.
Therefore, whether our exclusive original jurisdiction has been properly invoked or not
becomes central to this case. We cannot determine the other issues, namely whether the
writ and statements of case disclose any cause of action to enable the plaintiff to sue and
whether the action is speculative or not, unless we first resolve the question whether our
enforcement jurisdiction has been properly invoked. As was pointed out by my respected
sister, Bamford-Addo JSC in the case of Ghana Bar Association v Attorney-General [1995-
96] 1 GLR 598 at 612, SC:
“The Attorney-General, appearing for the defendants, filed a statement of defence and
followed it up with a motion raising certain preliminary objections, including one objection
to the jurisdiction of this court to entertain the action. We decided to take the jurisdictional
objection first, it being a fundamental issue, as without jurisdiction the court would be
precluded from going into the merits of the case or taking any further steps in the matter.”
I am of the view that this case is a direct invitation to us to take a second look at our
decision in Yeboah v JH Mensah (supra), more so when the learned Deputy Attorney-
General submitted that he was relying on this case to oust our jurisdiction; while learned
17
counsel for the plaintiff, though not admitting that the decision could be wrong, however
submitted that this court has exclusive jurisdiction to enforce the provisions of article 94
of the Constitution, 1992. And when asked by a member of the panel whether the
legislature could cede part of this enforcement jurisdiction, which is exclusive, over
article 94 of the Constitution, 1992 and vest same in any other court, counsel replied in
the negative and further agreed that the legislature would then be exceeding its
legislative authority. This, to me, appears to be contrary to the position taken by the
majority, and rather in line with the minority view in the JH Mensah case (supra).
I must recall that it was learned counsel for the plaintiff who represented the defendant
in the JH Mensah case (supra) and urged this court to decline jurisdiction and dismiss the
case against the defendant because it was an election petition camouflaged as an action
to enforce article 94(1)(b) of the Constitution, 1992. To me, therefore, the instant case is
important for the development of our constitutional law: if we should decide that Yeboah
v JH Mensah (supra) had been rightly decided, then, of course, the objection of the
learned Deputy Attorney-General must be upheld unless we can successfully distinguish
it from the instant case. In Yeboah v JH Mensah (supra) the plaintiff issued a writ
invoking our enforcement jurisdiction against the defendant who had been elected as the
member of Parliament for the Sunyani East Constituency because he did not hail from
that constituency and did not satisfy the residential requirement imposed by article
94(1)(b) of the Constitution, 1992 but got himself elected as a member of Parliament for
that constituency contrary to the said article 94(1)(b) of the Constitution 1992. This court,
in a majority decision, held that the High Court, and not the Supreme Court, was the
proper forum under article 99(1)(a) of the Constitution, 1992 and Part IV of PNDCL 284
for determining the plaintiff’s action, which was, in substance, an election petition to
challenge the validity of the defendant’s election to Parliament. And that since a specific
remedy at the High Court was provided under article 99(1)(a) of the Constitution, 1992
for determining challenges to the validity of a person’s election to Parliament, a resort to
the enforcement jurisdiction under articles 2(1)(b) and 130(1)(a) of the Constitution, 1992
was not available to the plaintiff.
In the present case the same counsel whose argument persuaded this court to decide that
way it did in the JH Mensah case (supra), has now turned round to invoke our
enforcement jurisdiction, which he admits is exclusive to the Supreme Court, in respect
of the same article 94 of the Constitution, 1992, though this time clause (3)(b) is involved
rather that clause (1)(b) which featured in the JH Mensah case (supra). In my respectful
view, there cannot be a dichotomy in our enforcement jurisdiction in respect of any article
in the sense that if an event occurs after which our jurisdiction is invoked, the action falls
outside our jurisdiction; but if invoked before, the occurrence of the event, then the article
18
remains within our enforcement jurisdiction. I cannot bring myself to comprehend, let
alone accept the possible view that an action based upon any provision of article 94 of the
Constitution, 1992 becomes an election petition, if initiated after an election, and therefore
cognisable by the High Court under article 99(1)(a) of the Constitution, 1992 and Part IV
of PNDCL 284. But if the action is initiated before an election, like the present case, it is
an action cognisable by the Supreme Court in the exercise of its enforcement jurisdiction,
which is exclusive, under article 2(1)(b) and 130(1)(a) of the Constitution, 1992. Such a
dichotomous definition of our enforcement jurisdiction will be clearly inconsistent with
the jurisprudential consideration which underpins the concept of an exclusive
jurisdiction in law and contrary to one of the most important principles of the common
law which finds expression in the Latin maxim nihil in lege intolerabilius est, eandem
rem diverso jure censer—meaning, nothing in law is more intolerable than that like cases
should be decided upon different constructions of the law. It is our sacred duty to let the
law speak to all with one voice.
The submission of the learned Deputy Attorney-General that the decision in Yeboah v JH
Mensah ousts our jurisdiction under article 2(1)(b) and 130(1)(a) of the Constitution, 1992
should put the decision back under our judicial microscope for a detailed reexamination.
I delivered the dissenting opinion in that case and held the view that article 94 of the
Constitution, 1992, unlike those provisions on individual rights, was within our
enforcement jurisdiction under article 2(1)(b) and 130(1)(a) of the Constitution, 1992, and
no other court could have jurisdiction over same since it would be inconsistent with the
concept of exclusivity of our enforcement jurisdiction. And, in so far as PNDCL 284 in
section 20(1)(d) seeks to indirectly grant jurisdiction to the High Court over article 94 of
the Constitution, 1992, the said provision was unconstitutional. Nana Akufo-Addo
agreed with this view when it was put to him by a member of the court.
In the present ruling, I do not intend to offer any apology for my dissenting opinion in
the JH Mensah case (supra). My views have been adequately stated in the dissenting
opinion. But I only want to point out one fact which may not be clear in the views I
expressed in that case. It should be noted that article 99(1)(a) of the Constitution, 1992
which was used by the majority to deny the plaintiff his claim in the JH Mensah case
(supra), does nothing more than to only confer jurisdiction on the High Court in an
election petition. The article itself does not even mention “election petition” and it is
audibly silent on the grounds for such a petition. The article states:
“99. (1) The High Court shall have jurisdiction to hear and determine any question
whether—
(a) a person has been validity elected as a member of Parliament. . .”
19
As pointed out, article 99 of the Constitution, 1992 did not itself specify the grounds for
an election petition. It has been left to the legislature to determine. This is what PNDCL
284 seeks to achieve through section 20 in Part IV of the said Law. Also if article 99 of the
Constitution, 1992 had been drafted as follows:
“Notwithstanding articles 2(1)(b) and 130(1)(a) of this Constitution, the High Court shall
have jurisdiction to hear and determine any question whether—
(a) a person has been validly elected as a member of Parliament . . .”
then one could say that our enforcement jurisdiction in respect of article 94 of the
Constitution, 1992 had been ousted and conferred on the High Court. So that both the
grounds for an election petition and the exclusivity of the jurisdiction of the High Court
in such matters would have been properly enacted by another law, ie PNDCL 284, 20. If
in determining the proper forum for the enforcement of the provision of article 94 of the
Constitution, 1992 article 99(1)(a) of the Constitution, 1992 and Part IV of PNDCL 284 has
to be considered, then one has to remember that PNDCL 284 is an existing law, which in
the words of article 11(6) of the Constitution, 1992 must be:
“. . . construed with any modifications, adaptations, qualification and exceptions necessary
to bring it into conformity with provisions of this Constitution, or otherwise to give effect
to, or enable effect to be given to, any changes effected by this Constitution.”
Section 20 of PNDCL 284 must in my view be read in such a way as to give effect to
articles 2(1)(b) and 130(1)(a) of the Constitution, 1992 since section 20(1)(d) of the
Constitution, 1992 indirectly cedes part of our enforcement jurisdiction in respect of
article 94 to the High Court which, to me, is inconsistent with the exclusivity of our
enforcement jurisdiction and therefore unconstitutional. If this view is correct, then the
grounds for an election petition as stated in section 20(1) of PNDCL 284 can be said to be
ejusdem generis, that is factors dealing with the election process itself, and which can be
said to vitiate or invalidate the election result itself since such conduct could be said to
have interfered with the people to freely choose their representatives. This is why I still
hold the view that it is not proper for the legislature to indirectly vest the High Court
with exclusive jurisdiction over the provisions of article of 94 of the Constitution, 1992 by
providing in section 20(1)(d) of PNDCL 284 that the non-qualification or disqualification
of a person under article 94 can be a ground for an election petition since these are
disabilities which can never be removed 21 days after Gazette notification of the results.
There cannot be any limitation when the breach of the Constitution is involved.
I have already said that I do not intend to offer any apologies for my views in the case of
Yeboah v JH Mensah (supra), but I want to repeat what I said when I was considering the
20
implications of the jurisdiction of the High Court in an election petition based on section
20(1)(d) of PNDCL 284. In the JH Mensah case, [1998-99] SC GLR 492 at 523, I said that:
“Section 20(1)(d) provides for the cancellation of an election result on the ground that the
candidate was at the time of his election a person not qualified or a person disqualified for
election. ‘Qualified’ or ‘disqualified’ under what law, one may ask: is it under article 94 of
the Constitution, or under section 9 of PNDCL 284 which only re-enacted verbatim the
constitutional provisions? Before answering this question, it may be useful reminding
ourselves of article 1, which proclaims that ‘this Constitution shall be the Supreme law of
Ghana.’ Therefore, any person who brings an election petition based on any of the grounds
stated in section 20(1) (d) will essentially be alleging that the candidate has infringed the
provisions of article 94. And by the combined effect of article 2(1) and 130(1) of the
Constitution, as interpreted in several cases by this court, it is only the Supreme Court
which can enforce the Constitution against a person whose act or conduct infringes its
provisions.”
But the cumulative effect of sections 16(1) and (2) and 20(1)(d) of PNDCL 284 is to give
the High Court exclusive jurisdiction over a cause or matter which, as we have seen, is also
within the exclusive original jurisdiction of the Supreme Court. This certainly will not
only be absurd, but also a legal heresy.
It is a contradiction in terms to say that a particular court has exclusive jurisdiction over
a matter and also assert that the jurisdiction is shared with another court over the same
subject-matter. Even more astounding and ridiculous will be the implication of such a
submission: that both courts have exclusive jurisdiction over that same matter! The section
of PNDCL 284 which could encourage these absurd legal submissions is section 20(1)(d),
which provides that noncompliance with the constitutional requirements on eligibility can
be a ground for an election petition.”
I agree with the submission of Nana Akufo-Addo, learned counsel for the plaintiff, that
article 94(3)(b) of the Constitution, 1992, and for that matter the other provisions of article
94, fall within our enforcement jurisdiction under article 2(1)(b) and 130(1)(a) of the
Constitution, 1992 and that the plaintiff’s writ is cognisable only by this court. It follows
without saying, in my humble view, that for the legislature to directly or indirectly cede
part of this jurisdiction and vest same in any other court, would mean that it has exceeded
the constitutional limitation imposed on its legislative authority. And where, as in this
case, the legislation involved happens to be an existing law, we must necessarily construe
it in accordance with article 11(6) of the Constitution, 1992 so as to bring it into conformity
with articles 2(1)(b) and 130(1)(a) of Constitution, or enable effect to be given to these
articles. I am therefore, of the view that our enforcement jurisdiction has been properly
invoked in this case.
21
The next point I would like to discuss is whether the plaintiff’s writ and statement of case
disclose any cause of action. Litigation, by its very nature, presupposes the existence of a
dispute between two persons or parties—one of whom, the plaintiff, must have had
accrued to him a cause of action. It is therefore important that a person intending to
commence an action in any court must advert his mind to certain important and relevant
matters before initiating his action, or he will be out of court. One of these is that the
intending plaintiff must be certain that he has capacity, for without capacity his writ will
be at nullity and void ab initio. In the case of Akrong v Bulley [1965] GLR 469, the plaintiff
was the mother of a man negligently killed by a tipper truck owned by the second
defendant and driven by the first defendant. The action was brought under the Fatal
Accidents Act, 1846-64. In the writ, the plaintiff described himself as “successor and next-
of-kin.” She was latter given leave to amend the title of her suit by prefixing to the words
“successor and next-of-kin” the words “personal representatives.” The plaintiff did not,
however, take letters of administration till over a year after she had issued her writ.
Negligence was clearly established by the evidence. The defendant argued that, as at the
time the action was commenced, the plaintiff had not taken any letters of administration
and therefore did not disclose any legal capacity to sue. The trial judge overruled the
objection. On appeal, it was held that since at the time the plaintiff issued her writ she
had not taken out letters of administration, she lacked capacity to sue. Apaloo JSC (as he
then was) said at 476:
“1 need hardly say that I reached this conclusion with no relish especially as the plaintiff
made out an unimpeachable case of negligence against the defendants on the merits. But
the question of capacity, like the plea of limitation, is not concerned with merits...”
The next consideration that an intending plaintiff must advert his mind to is that the
defendant is the proper person to sue and that he in fact does exist in law. As was held in
the case of Benyarko v Mensah [1992] 2 GLR 404 at 410: “in this jurisdiction a person can
sue or be sued only if he is either a natural person, or a juristic person.” Although the
non-joinder or misjoinder of a party cannot defeat an action, the suing of a non-existent
defendant renders a writ null and void.
It is equally important that before initiating an action in court, the plaintiff ensures that a
cause of action has accrued to him. Because without a cause of action in a plaintiff, his
action is likely to be perceived as vexatious and an abuse of the process of the court; and
the writ would be set aside. The learned Deputy Attorney-General has invited this court
to set aside the plaintiff’s writ and statement of case for not disclosing a cause of action
at the time the writ was filed. What then is the meaning of the term “cause of action”?
The term has been held from the earliest times to mean every fact which is material to be
proved to entitle the plaintiff to succeed, that is every fact which the defendant would
22
have to traverse: see Cooke v Gill (1873) LR 8 CP 107. And in the case of Sugden v Sugden
[1957] 1 All ER 300, Lord Denning defined the term thus: “Cause of action . . . means, I
think, rights which can be enforced, or liabilities which can be redressed, by legal
proceedings in the Queen’s Courts.” Parke B in the case of Hernaman v Smith (1855) 10
Exch 659 at 666 said of the term: “The term ‘cause of action’ means all those things
necessary to give a right of action, whether they are to be done by the plaintiff or a third
person.” The New Zealand courts have defined the term not in any philosophical
language but in a simple and pragmatic way. One such case is the case of Dillon v
Macdonald [1902] 21 NZLR 375 where the court said:
“In an action for damages for breach of contract, the cause of action is the breach of contact
. . .There is . . . one class of cases in which the fact of damages, is a necessary and essential
ingredient in the ‘cause of action’. . . namely, actions for torts for causing damage to person
or property not actionable without special damage, or until damage is sustained.”
The importance of a cause of action accruing to a plaintiff before he issues his writ will
be appreciated when considered in terms of the Limitation Decree, 1972 (NRCD 54) and
the jurisdiction of certain courts. Thus time begins to run when the cause of action arises
unless postponed or revived by reason of fraud, mistake, acknowledgment etc. It is,
therefore, important to determine the date upon which the cause of action arises or
accrues to a plaintiff. Also, the issue of where a cause of action arises becomes relevant in
respect of inferior courts whose jurisdiction is frequently limited to cases where the cause
of action or some part of it arises within its jurisdiction. Accrual of cause of action is
therefore a factor which enables a plaintiff to legitimately invoke a court’s jurisdiction
and ask for a relief. And it also determines the type of relief to be asked for. So that where
the cause of action relates to a breach of a tenancy agreement, one cannot sue for damages
for libel.
The term “cause of action” can therefore be defined as an occurrence which gives right to
an enforceable claim or relief in law or equity. To enable a plaintiff to be properly in court,
accrual of a cause of action in him is a sine qua non and as important as he having capacity
to sue. Nobody comes to court when he has no cause of action. It is trite learning, scarcely
needing any express legal authority, that a writ and a statement of claim which disclose
no cause of action must be set aside and declared a nullity by the court.
The problem, therefore, turns on the answer to the question whether the plaintiff had a
cause of action when he issued the writ on 8 June 2000, that is to say two days after
plaintiff by its agents saw the publication in The Ghanaian Times. In other words, can it
be said that the first, second, third defendants, have done an “act” in terms of article
2(1)(b) and 130(1)(a) of the Constitution, 1992 to enable our enforcement jurisdiction to
23
be invoked in the circumstances disclosed in the writ and the statement of plaintiff’s case?
At what point in time, therefore, can a person who is not qualified, or is disqualified
under article 94 of the Constitution, 1992 be said to have done an “act” which infringes
the said article to give a citizen the right to invoke our enforcement jurisdiction?
It is not disputed that when the writ was issued the Electoral Commission itself had not
taken any steps towards inviting the registration of candidates. No writ of election had
been issued under regulation 2 of CI 15 followed by the issuing of a notice of election
under regulation 3 of CI 15. It is only the intention to do so that has been expressed. It
must however be said in passing that in our jurisdiction the law does not sanction the
mere declaration of intent. I am of the view that what provoked this action was a mere
declaration of intent by the National Democratic Congress to put up as parliamentary
candidates for Asante Akyem North and Bosomtwe constituencies the second and third
defendants respectively. The law does not punish mere declaration of intent. To be
amenable to the sanctions of the law, a person must have at least taken a decisive step
towards the consummation of his intention so as to amount to at least an attempt in law.
Or, he must have crossed the rubicon; or at least passed the referred to in law as locus
poenitentiae. Our Constitution, 1992 in article 2(1)(b) speaks of sanctioning a person
whose “act or omission” is inconsistent with, or is in contravention of a provision of the
Constitution. As I have said, the second and third defendant had not committed any act
at the time the writ was issued by the plaintiff. In other words, the plaintiff had no cause
of action when they issued the writ. Neither has the first defendant taken any steps under
regulation 4 of CI 15 towards the nomination of the second and third defendants when
the present writ was filed by the plaintiff. It is only the intention to do so that has been
expressed.
In any case the said regulation 4(1) provides:
“4. (1) A candidate for election to Parliament shall be nominated by a separate nomination
paper in such form as the Commission shall determine which shall be delivered in
quadruplicate by the candidate himself or the person who proposes or seconds his
nomination to the returning officer of the constituency for which the candidate seeks
election on the day and at the place specified in the writ between the hours of nine in the
morning and twelve noon and the hours of two and five in the afternoon.”
The proposed candidate must then submit to the returning officer a statutory declaration
stating that he is qualified to be and is not disqualified from being elected to Parliament,
and comply with other conditions imposed in regulations 6(1)(b) and (c) of CI 15, that is
pay the required deposit. It is only when, in the words of regulation 7(1),
24
“. . . the nomination paper and the statutory declaration of a candidate, are delivered and
the deposit is paid in accordance with these Regulations, the candidate shall be considered
to stand nominated, unless proof is given to the satisfaction of the returning officer of the
candidate’s death, withdrawal, or disqualification.”
(The emphasis is mine.) So that the law itself specifies when a person can be said to have
been nominated.
And where the returning officer is satisfied that a candidate is disqualified or not
qualified from contesting the elections, he shall so inform the candidate of the invalidity
of his nomination and certify same on his nomination papers to the Electoral Commission
who will refer the matter to the Attorney-General. Sub-regulation 3 of CI 15 states:
“(3) Where the returning officer decides that a nomination paper is invalid, after complying
with sub-regulation (2) of this regulation, he shall endorse and sign on the nomination
paper the fact and the reasons for his decision, and inform the Commission accordingly and
the Commission shall refer the matter with its observations on it to the Attorney-General.”
The sub-regulation is silent on what the Attorney-General must do in a situation where,
for example, a candidate is found to have violated any of the provisions of article 94 of
the Constitution, 1992, because he is not qualified or disqualified to be a member of
Parliament. The Attorney-General is the legal conscience of both the government and the
nation, and has sworn to defend the Constitution. The Constitution, 1992 itself in article
88(5) provides that the Attorney-General “shall be responsible for the institution and
conduct of all civil cases on behalf of the State.” I think this constitutional responsibility
includes the duty to initiate proceedings under article 2(1)(b) and 130(1)(a) of the
Constitution, 1992 against any person or group of persons whose conduct breaches any
provision and which conduct has been official, certified to him. This of course should not
derogate from the individual’s right to also bring an action under article 21(b) and
130(1)(a) to enforce article 94 of the Constitution, 1992 even after an election and not
through election petition; especially when under regulation 3(3) of CI 15, the returning
officer could declare the nomination of a person (in defence of any provision of article 94)
as invalid and such invalidity be certified to the Attorney-General. Whether such
invalidity is detected before or after an election makes no difference in the legal position;
that is to say, if the infringement of any provision of article 94 of the Constitution, 1992 is
detected before an election, the Supreme Court has an exclusive jurisdiction to enforce
that provision of the Constitutions; if the breach is detected after an election, then the
High court has jurisdiction through an election petition. This is clearly absurd and
inconsistent with the principle of exclusivity of jurisdiction which learned counsel for the
plaintiff Nana Akuffo-Addo, himself admitted in his submission before us.
25
However, the learned Deputy Attorney-General had admitted in this court that at the
time when arguments were being taken in this motion, the second and third defendants
had indeed registered on the tickets of the first defendant as parliamentary candidates.
The second defendant has since resigned his post in the civil service while the third
defendant is still at post because he claims, as a public officer, he was not covered by
article 94(3)(b) of the Constitution, 1992. The plaintiff therefore withdrew against the
second defendant.
What then is the effect on the writ of the subsequent registration of the third defendant
as a candidate for the NDC while still retaining his post in the public service. This in my
view will depend on the answer to the question whether, in the first place, the writ issued
on 8 June 2000 was a nullity which could be incurable, or it was only a defective writ
whose defect could be cured by an amendment. As was pointed out by Holroyd Pearce
LJ in the case of Pontin v Wood [1962] 1 All ER 294 at 298: “It is difficult to define precisely
the difference between that which is a nullity and cannot therefore be cured by any
amendment or subsequent proceedings and that which is defective and can be cured.”
Because if the writ was not a nullity, but was merely defective, it would not be right to
set the writ aside as opposed to setting aside the service of the writ. This is so since setting
aside the writ itself will destroy the plaintiff’s ability to continue, but merely to set aside
the service will not do so and is of little use to the defendant because the plaintiff can still
rectify a defective writ and it will be wrong to set it aside: see Pontin v Wood (supra).
It is trite learning that a plaintiff cannot come to court unless he has a cause of action or a
cause of action has accrued to him, otherwise he is out of court because the writ would
have disclosed no course of action and hence, void. And a defendant, who is fortunate
enough to have acquired the benefit of the writ not disclosing any cause of action and a
nullity, is entitled to insist upon his rights. I have no difficulty in coming to the conclusion
that since there was no cause of action in the plaintiff when he issued the writ, which I
consider to be an abuse of the process of this court, the writ is a nullity and should be set
aside. The court has, apart from the rules, inherent jurisdiction to prevent abuse of its
process. The fact that a cause of action may have accrued later cannot, in my view,
resuscitate and rehabilitate the writ.
Because these proceedings are indeed a nullity, we are powerless to help the plaintiff
since no amendment can improve that which is in itself void and of no effect: see McFoy
v UAC Co [1962] AC 152 PC; and Mosi v Bagyina [1963] 1 GLR 337, SC. But in the case of
Dolphyne (No3) v Speedline Stevedoring Co Ltd [1996-97] SC GLR 514 where the appeal
was allowed on grounds that the trial circuit court had no jurisdiction, the appellate court
however proceeded to confirm the damages awarded by the trial circuit court.
26
This is clearly contrary to established authority and I will not follow it since you cannot
put something on nothing and expect it to stand. The fact that a cause of action might
have accrued to the plaintiff after they issued their writ cannot help a writ which in law
did not exist in the first case. The plaintiff took the gauntlet when none had been thrown
down. This case has confirmed my belief in the correctness of my dissenting views
expressed in the JH Mensah case (supra). I am therefore of the view that our enforcement
jurisdiction has been properly invoked. My problem is with the writ itself, namely no
cause of action had accrued to the plaintiff when it issued the writ. These are some of the
reason why I voted in support of the majority decision.
Acquah JSC. My lords, the issue for determination in this application is undoubtedly one
of jurisdiction. For the Attorney-General’s contention is that this court has no jurisdiction
because the plaintiff’s writ and statement of a case disclose no cause of action; that it does
not involve any issue of interpretation; that it is speculative and finally that it seeks an
advisory opinion. The New Patriotic Party (hereinafter referred to as the NPP) on the
other hand, rejects each of these contentions and accordingly urges us to dismiss the
application.
But first, the facts: The NPP filed a writ invoking the original jurisdiction of this court
against the National Democratic Congress (hereinafter referred to as the NDC), Kofi
Opoku-Manu of the Ministry of Finance, Joseph Oteng-Addei of the Ministry of Mines
and Energy and the Attorney-General as first, second third and fourth defendants
respectively, for:
“(1) A declaration that the decision by the first defendant to put forward the second and
third defendants as candidates of the first defendant in the 2000 Parliamentary Elections
for the Asante Akyem North and Bosomtwe constituencies—respectively is inconsistent
with and in contravention of the Constitution, 1992, in particular article 94(3)(b) thereof,
and is accordingly null and void and of no effect;
the second and third defendants as its parliamentary candidates in the 2000 Elections in
so far as they are ineligible to be members of Parliament.
(4) Such other orders as to this court may deem meet.
In paragraph (4), (5), (6) and (7) of the accompanying statement of case, the reasons for
seeking these reliefs are set out, as follows:
27
“(4) In a publication dated 6 June 2000 of the national state-owned daily newspaper, The
Ghanaian Times, at page 10 thereof, the first defendant is reported to have approved the
defendant in the 2000 elections for the Asante Akyem North and Bosomtwe Constituencies
respectively. The second and third defendants are actively campaigning as such.
(5) By article 9(3)(a) of the Constitution, 1992 a member of the civil service is not eligible
to be a member of Parliament.
(6) The plaintiff says that the approval of the second and third defendants, who are civil
servants, is not eligible to be a member of Parliament.
(7) The plaintiff say that the approval of the second and third defendants, who are civil
servants, as parliamentary candidates of the first defendant is a gross, patent violation of
the Constitution, 1992, in particular article 94(3)(a) thereof, and is accordingly null, void
and of no effect.”
In response to this action, the Attorney-General filed the instant motion seeking an order
of this court to set aside the plaintiff’s writ and statements of case on grounds that this
court lacks jurisdiction in the matter. Moving the court on the basis of this motion, the
learned Deputy Attorney-General, Mr Martin Amidu, submitted that the plaintiff’s writ
and statement of case disclose no cause of action premised on articles 2(1)(b) and 130(1)(a)
of the Constitution, 1992. He argued that article 94(3)(b) of the Constitution, 1992 deals
simply with membership of Parliament and not election or candidacy to that house. And
that this article becomes meaningful when read alongside article 99 which deals with
election petitions. Thus read, he contended, it becomes clear that actions in respect of
article 94(3)(b) of the Constitution, 1992 arise after an election had been conducted and
not before. He then referred to article 99, the provisions of the Representation of People
Law, 1992 (PNDCL 284), particularly section 16 thereof, and the recent Supreme Court
decision. In Yeboah v JH Mensah [1998-99] SC GLR 492 and submitted that election
petitions in respect of parliamentary candidates are justicaible in the High Court and not
the Supreme Court. Assuming therefore that the instant suit is an election petition, it is
clear that this court cannot entertain the petition.
Honourable Mr Martin Amidu next submitted that the meaning of article 94(3)(b) of the
Constitution, 1992 is so clear and unambiguous that no issue of interpretation arises to
warrant the invocation of the original jurisdiction of this court. He further argued that
the plaintiff’s action is speculative in that the action seeks to invite the court to speculate
whether the second and third defendants will qualify for nomination as parliamentary
candidates. Finally, he submitted that the action seeks advisory opinion from the court.
28
Relying on Bilson v Attorney-General [1993-94] 1 GLR 104, SC, he contended that such
an action cannot be entertained.
In his response, Nana Akuffo-Addo, leading counsel for the plaintiff, began by
announcing that the second defendant had retired from the civil service and therefore,
the plaintiff has no cause of action against him. He then submitted that the clear intent of
article 94(3)(b) of the Constitution, 1992 is to preserve, within the context of a multiparty
democracy, the neutrality of the public service by prohibiting public officers from
involvement in partisan political activities. He argued that the plaintiff is not seeking an
interpretation of article 94(3)(b) of the Constitution, 1992. Rather, the plaintiff is seeking
an enforcement of that article. And that the Supreme Court, being the constitutional
court, is the only competent court to enforce compliance with that article. He contended
that the plaintiffs action is not an election petition, and therefore Yeboah v JH Mensah
(supra) does not apply. Nana Akuffo-Addo disagreed with the contention that their
action is speculative for both defendants have now filed their nomination papers to
contest in the forthcoming elections. He contended that the crucial issue is on the meaning
of the word “eligible” in article 94(3)(b) of the Constitution, 1992. He said the third
defendant is not eligible to contest the elections, and that was why they are in this court
to seek compliance with article 94(3)(b) of the Constitution, 1992.
Now, what cause of action, if any, does the plaintiff’s writ and statement of case disclose?
An election petition, an enforcement action or what? If it is an election petition, then on
the authority of Yeboah v JH Mensah (supra), the soundness of which authority Nana
Akuffo-Addo concedes, the proper forum is the High Court.
Now, article 99(1)(a) of the Constitution, 1992 provides that the High Court shall have
jurisdiction 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.” (The
emphasis is mine.) It is also provided by sections 16(1) and (2) of PNDCL 284 that:
16. (1) The validity of an election to Parliament shall be questioned only by a petition
Sections 17, 18, 19, 21 and 22 of PNDCL 284 set out the detail requirements of an election
petition. On the basis of these provisions, the essentials of an election petition were set
out in Yeboah v JH Mensah (supra) at 538-539 thus:
“(i) original jurisdiction is vested only in the High Court;
(ii) may be initiated only by one or more of the following:
29
(a) a person who lawfully voted or had a right to vote at the election to which the
petition relates;
(b) a person claiming to have had a right to be elected at the elections;
(c) a person alleging himself to have been a candidate at the election; and
(d) a person alleging to have had a right to be nominated as a candidate at the
election; and
(iii) The petition must be initiated within a period of 21 days from the date of the Gazette
publication of the results in respect of which the petition relates. And in the case of a
petition alleging corruption, especially payment of money or other reward, the petition
must be initiated within a period of 21 days from the date of the alleged payment. In each
situation, the petitioner is to deposit ¢20,000 as security for cost within the same 21 days
time limit. Otherwise, the petition is invalid. And this 21 days time limit within which to
initiate the petition cannot be extended.”
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 far same to be enquired into. The plaintiff’s action, therefore cannot be and
is not an election petition. What the NPP seeks to do in this action is to challenge the
eligibility of the third defendant to stand election, following the first defendant’s decision
to present him as one of its parliamentary candidates, in the face of article 94(3)(b) of the
Constitution, 1992. And in respect of such an action, I understand Mr Martin Amidu’s
submission to mean that such a cause of action cannot lie until after the elections have
been held.
Honorable Mr. Martin Amidu’s submission implies that a citizen has no means of seeking
redress when he has evidence to establish that a candidate for parliamentary elections is
not legally qualified to stand as a candidate for that election. The only remedy such a
citizen has, by his arguments, is to wait after the elections and thereafter file an election
petition, if such a citizen happens to be one of the persons qualified within the provisions
of section 17 of PNDCL 284 to present such a petition. If he does not fall within any of the
authorised persons, then the citizen is completely debarred from challenging the
unqualified candidate. Should this be the legal position, and will the framers of the
Constitution, 1992 approve such a consequence?
Now, when a election petition succeeds and the election of the candidate is declared by
the court to be invalid, a bye-election is held in that constituency to elect a new candidate.
For, the disputed election is held nullified and of no legal consequences whatsoever. Thus
in Luguterah v Interim Electoral Commission [1971] 1 GLR 109 at 113, Kingsley-Nyinah
30
J (as he then was), expatiating on the effect of his finding that Mr Tedam was disqualified,
said:
“. . . the nomination and subsequent victory of Tedam were both inherently tainted by
reason of his disqualification under the relevant decree. All his successful votes have
therefore fallen and with that fall the popular will of the electorate has also been declared
nullified and of no legal constitutional effect whatsoever ... It is my further view that the
entire election results of 29 August 1969 for the Chiana-Paga constituency must stand
upset.”
Therefore, whenever an election petition succeeds, the State is required to incur another
financial burden, obviously from the tax payers, to conduct a bye-election at that
constituency, and the electorate is also obliged to go through a second voting process. Is
it not obvious then, that a better and more prudent course is to opt for a pre-election
challenge as opposed to a post-election challenge? But it is this pre-election challenge
adopted by the NPP in this action that the Deputy Attorney-General opposes on ground
that under our electoral laws, there is no such cause of action.
The Constitution, 1992 provides in articles 62, 63, 64 and 94 the qualifications and
eligibility of persons seeking to contest in presidential and parliamentary elections.
PNDCL 284 and the Public Elections Regulations, 1996 (CI 15) are the provisions and
regulations on election to these offices. Compliance with these constitutional and
statutory provisions are not only mandatory but essential to the success of our
constitutional democracy. Accordingly, where there is a threatened breach of any of these
provisions, the individual is under a constitutional obligation to prevent such threatened
breaches. And if the only means of preventing such breaches is to seek redress in court,
the individual must have an unhindered access to the courts.
As demonstrated earlier on, our electoral laws provide for an election petition under
article 99 of the Constitution, 1992 and section 16 of PNDCL 284 to challenge the validity
of elected candidates and not those seeking to stand election. Indeed regulation 7 of CI
15 shows that the authority to declare the validity or otherwise of a candidate’s
nomination paper is vested in the returning officer of the relevant constituency. And
when a returning officer decides that a candidate’s nomination paper is invalid,
regulation 7(3) of CI 15 provides:
“(3) Where the returning officer decides that a nomination paper is invalid, after complying
with sub-regulation (2) of this regulation, he shall endorse and sign on the nomination
paper the fact and the reasons for his decision, and inform the Commission accordingly and
the Commission shall refer the matter with its observation on it to the Attorney-General.”
31
Now the regulation 7(2) of CI 15 which must be complied with by the returning officer
before declaring a nomination invalid, reads:
“(2) The returning officer shall inform a candidate that his nomination is invalid where—
(a) the particulars of the candidate or the persons subscribing to the nomination paper are
not as required by law; or
(b) the nomination paper is not subscribed to as required by law, and allow the candidate
an opportunity to make any amendment or alteration that the candidate considers
necessary?
Now, the only remedy provided in CI 15 in respect of challenging a candidate’s
nomination is in regulation 7(4) which states: “(4). Nothing in this regulation shall
prevent the validity of nomination being challenged on an election petition.” But what
happens where a candidate whose nomination has been declared invalid desires to
challenge that decision of the returning officer? Or in a situation where a citizen desires
to challenge the nomination of a candidate whose papers, though have been accepted by
the returning officer, yet the citizen is of the opinion that the candidate is ineligible?
If the electoral laws do not specifically provide a remedy to those aggrieved by the
decision of the returning officer, the Constitution guarantees any such aggrieved person
the right to seek redress before a court of law. And in seeking redress, the aggrieved
person ought in accordance with the nature of his complaint, adopt the nearest possible
procedure accorded by the law. For as Francois JSC said in Darko v Amoah [1989-90] 2
GLR 214 at 291 SC:
“In any event it is elementary that where the procedure for utilizing a substantive legal
provision has not been spelt out, a litigant is entitled to adopt the nearest reasonable mode
of utilizing the right accorded by the law.”
Of course, where the mode of utilising that legal provision has been spelt out, that mode
or procedure which must be utilised: see Yeboah v JH Mensah (supra).
Indeed, the jurisprudence in our electoral adjudication is not without instances of pre-
election challenges. In Nyame v Mensah [1980] GLR 338, an originating summons was
issued at the High Court to determine whether the defendant was qualified in terms of
the Elections and Public Offices Disqualification Decree, 1978 (SMCD 206) and the
Election of Public Officers Disqualification (Disqualified Persons) Decree, 1978 (SMCD
216) to file, nomination papers as a candidate for parliamentary elections in the Sunyani
constituency. In holding that the defendant was not qualified in terms of those laws, the
court said that the effect of section 1 of SMCD 216 was to provide a remedy in the nature
32
of a quia timet injunction to prevent the consequences of an election which was bound to
be nullified. (The emphasis is mine.)
Again we have the well-known case of Ekwam v Pianim (No 2) [1996-97] SC GLR 120
wherein the eligibility of Mr Kwame Pianim to stand for the 1996 Presidential Elections,
was challenged at a time when the Electoral Commission had not even issued the relevant
writ of election. The assumption of jurisdiction by this court (and there was no challenge
to it) and subsequent determination of the qualification of Mr Kwame Pianim to stand
for election in the face of article 94(2) of the Constitution, 1992 explodes the learned
Deputy Attorney-General’s contention that no cause of action can arise in relation to
article 94 of the Constitution, 1992 until an election had been conducted. The fact that
Ekwam v Pianim (supra) was in relation to presidential elections is neither he nor there.
The important point is that challenges to the qualification and eligibility in both Nyame
and Pianim’s cases (supra) were successfully mounted before the elections were
conducted.
In the instant case, the plaintiff’s complaint relates to an alleged violation of article
94(3)(b) of the Constitution, 1992. And as demonstrated above, the procedure provided
in article 99(1) of the Constitution and section 16 of PNDCL 284 is inapplicable to the
determination of this complaint. Since the only procedure available for vindicating that
right is an enforcement action under article 2(1) and 130(1) of the Constitution, 1992 the
plaintiff is entitled to adopt this procedure. Otherwise the plaintiff would be denied
access to the court.”
The learned Deputy Attorney-General’s next contention was that the plaintiff’s action is
speculative in that the action seeks to invite the court to speculate whether the second
and third defendants will qualify for nomination as parliamentary candidates in the
forthcoming parliamentary elections. Is the plaintiff’s action speculative? This of course
requires an analysis of the reliefs the plaintiff claims on its writ of summons. Generally,
an action is speculative if it is not grounded on a real situation but on conjectures and
therefore not ripe for adjudication. In United States constitutional jurisprudence, such an
action is discussed under the doctrine of ripeness. For article III of the United States
Constitution requires a court to consider whether a case has matured or ripened into a
controversy worthy of adjudication before it can be determined. In Aetna Life Insurance
Co v Harworth, 300 US 227 (1937) Chief Justice Hughes explained that a controversy in
this sense must be one that is appropriate for judicial determination. He said that the
controversy must be definite and concrete, touching the legal relations of parties having
adverse legal interest.
33
Now, a close study of United States constitutional jurisprudence vis-à-vis the language
and provisions of our Constitution, 1992 clearly shows that the United States doctrine of
ripeness, like most of their principles of judicial self-restraint, is inappropriate in the
interpretation of our Constitution, 1992. In JH Mensah v The Attorney-General [1996-97]
SC GLR 320 this court finally decided that the political question doctrine as applied in
the United States was inapplicable in our jurisprudence.
I will refer to only two cases illustrative of the United States doctrine of ripeness. First, is
International Longshoreman’s Union v Boyd, 346 US 222 (1954). The facts were that the
United States Congress in 1952 passed a law mandating that all aliens seeking admission
into the United States from Alaska be examined as if they were entering from a foreign
country. Believing that the law might affect seasonal American labourers working in
Alaska temporarily, a union challenged the law. Dismissing the suit, Justice Frankfurter
said at 223:
“Appellants in effect asked (the court) to rule that a statute the sanctions of which had not
been set in motion against individuals on whose behalf relief was sought because an
occasion for doing so had not risen, would not be applied if in the future such a contingency
should arise. That is not a lawsuit to enforce a right; it is an endeavour to obtain court’s
assurance that a statute does not govern hypothetical situations that may or may not make
the challenged statute applicable. Determination of the constitutionality of the legislation
in advance of its immediate adverse effect in the context of a concrete case involves too
remote and abstract an enquiry for the proper exercise of the judicial power”
Next is the case of United Public Workers v Mitchell, 330 US 75 (1947), the facts of which
are a little similar to the present suit. In Mitchell’s case, section 9(a) of the Hatch Act of
1940 prohibited federal employees in the executive branch from taking “any active part
in political management or in political campaigns.” Several employees and their union
brought suit to restrain the Civil Service Commission from enforcing section 9(a) against
them and for a declaratory judgment that the section is unconstitutional. The three-judge
district court dismissed that suit on the merits. The Supreme Court affirmed the
judgment, but on other grounds as to most of the plaintiffs. In affirming the district
court’s dismissal of the suit, Justice Reed said at 89-90:
“The power of courts, and ultimately of this Court, to pass upon the constitutionality of
acts of Congress arises only when the interests of litigants require the use of this judicial
authority for their protection against actual interference. A hypothetical threat is not
enough. We can only speculate as to the kinds of political activity the appellants desire to
engage in or as to the contents of their proposed public statements or the circumstances of
their publication. It would not accord with judicial responsibility to adjudge, in a matter
involving constitutionality, between the freedom of the individual and the requirements of
34
public order except when definite rights appear upon the one side and definite prejudicial
interferences upon the other.”
(The emphasis is mine.) Would the Ghana Supreme Court come to the same conclusion
as the United States Supreme Court, if the two cases were fought under our Constitution,
1992? Certainly not! For article 2(1) of our Constitution, 1992 empowers any person to
invoke the original jurisdiction of the Supreme Court in two situations. First, under article
2(1)(a) where the person alleges that an enactment is inconsistent with or is in
contravention of a provision of the Constitution, 1992. All that article 2(1)(a) of our
Constitution, 1992 requires is an allegation and not a personal interest of the plaintiff in
the case. And this was precisely the situation in the two American cases referred to above.
Indeed in New Patriotic Party v The Attorney-General (CIBA case) [1996-97] SC GLR 729
and Sam (No 2) v The Attorney-General [2000] SC GLR 305, the plaintiffs had no personal
interests nor did they allege any interference in their proprietary rights in the enactments
they successfully sought to impugn. The second instance is under article 2(1)(b) of our
Constitution, 1992 which requires allegation by any person that an act or omission of a
person is inconsistent with or in contravention of the Constitution, 1992. By article 2(1)(b)
of our Constitution, 1992 the person alleging inconsistency must of course establish the
act or omission complained of. But this act or commission needs not necessarily affect the
plaintiff personally. A typical example is the case of JH Mensah v Attorney-General [1996-
97] SC GLR 320 (the Vetting case) where the act complained of was the decision not to
present the retained ministers for vetting by Parliament. Thus, under article 2(1)(a) and
(b) of our Constitution, 1992, the requirement of the plaintiff’s personal interest or actual
interference in plaintiff’s personal or proprietary rights in the action are not required.
Consequently the United States doctrine of ripeness will be inapplicable in the
interpretation of our articles 2(1) and 130(1).
In the instant case, what precisely is the plaintiff demanding from this court, having
regard to its writ and statement of case? The first relief on the writ is very instructive. It
reads:
“A declaration that the decision by the first defendant to put forward the second and third
defendants as candidates of the first defendant in the 2000 parliamentary elections for
Asante Akyem and North Bosomtwe constituencies respectively, is inconsistent with and
in contravention of the Constitution, in particular article 94(3)(b) thereof, and is
accordingly null, void and of no effect.”
(The emphasis is mine.) Thus, the target of plaintiff’s attack is the decision of the first
defendant. And unless this crucial aspect of the plaintiff’s case is appreciated, one is
bound to derail and wander in unintelligible irrelevancies. For the third defendant’s
35
alleged engagement in partisan politics is said to be the result of this decision to put him
forward as parliamentary candidate. The decision therefore led to the institution of the
action. Following from this relief, the plaintiff seeks perpetual injunction. From the three
reliefs indorsed on the writ of summons, the plaintiff objective is to nullify the first
defendant, decision and thereby prevent the first defendant from putting forward the
third defendant as parliamentary candidate because such a decision, in its view,
contravenes article 94(3)(b) of the Constitution, 1992.
In other words, the plaintiff sees from the activities of the first and third defendants, a
threatened breach of the Constitution, 1992 and therefore comes to court to prevent them
from breaching the law. On this, the principle is too trite to require an authority in
support, that where one discovers from the acts and omissions of others that same
constitute a threat to a breach of the constitution and the law, that person has right of
access to the courts to forestall the said threat. If the said acts or omissions are against a
provision of the Constitution, 1992 then, as Azu Crabbe JA (as he then was) said in
Gbedemah v Awoonor Williams (1969) 2 G & G 438 of 440, SC, it becomes the
“inescapable duty of the Supreme Court to suppress it by enforcing the Constitution.”
The same point is made by Kpegah JS (in his dissenting opinion) in Yeboah v JH Mensah.
(supra) at 517-518:
“. . . any person who fears a threatened breach of the fundamental law [can] invoke our
enforcement jurisdiction in a sort of quia timet action to avert the intended or threatened
infringement of the Constitution. This is because our enforcement jurisdiction is premised
upon the consideration that, to quote from the Memorandum on the 1969 Constitution,
‘any person who fears a threatened infringement or alleges an infringement of any
provision of the Constitution’ should be able to seek redress in this court.”
Of course the plaintiff claims that the source of its knowledge of this decision was The
Ghanaian Times publication of 6 June 2000. In my view, this fact does not erode the basis
of the action, For the law recognizes the existence of newspapers as sources of
information, and accordingly provides in section 156 of the Evidence Decree, 1975
(NRCD 323) that: “Printed material purporting to be newspapers or periodicals are
presumed to be authentic.” This does not mean that whatever is stated in a newspaper is
true. What the provision does is to give recognition to the existence of a newspaper. It
would certainly be outrageous in my view for anyone to make capital out of the fact that
the source of the plaintiff’s information is a newspaper when even the courts rely on
publications in newspapers for a variety of purposes including substituted services, as
authentic means of giving notice to those entitled to be given such notices. It would be
unfathomable for this court to refuse to assume jurisdiction on grounds, inter alia, that
the plaintiffs source is the newspaper. After all instances abound where parties to suits
36
have relied on newspaper publications in support or defence of their case. No fetish

should therefore be made of the fact that the plaintiff’s source of information is The
Ghanaian Times.
In effect, what the plaintiff is alleging by its writ and statement of case is that at the time
it issued its writ of summons, the first defendant had taken a decision to present the third
defendant as its parliamentary candidates in the forthcoming parliamentary election and
that the said decision is in violation of article 94(3)(b) of the Constitution, 1992.
How does the court in determining such relief speculate whether the third defendant
would qualify as a parliamentary candidate? In Ekwam v Pianim (supra) the court, like
the instant one, was called upon to determine whether Mr Pianim was qualified to contest
in the presidential election. Did this court in determining the Pianim case (supra)
speculate whether Pianim was going to qualify as a presidential candidate? This
argument of the learned Deputy Attorney-General would indeed imply that pre-election
challenges founded on the qualification or eligibility of a person to contest in elections
would be speculative. Certainly not. I am therefore of the view that from the reliefs
endorsed on its writ of summons and the averments in the statement of case, it cannot be
said that the action invites the court to speculate on the eligibility of the third defendant
in the forthcoming parliamentary election. The plaintiff’s action principally calls for the
determination of the constitutionality of the first defendant’s decision vis-à-vis article
94(3)(b) of the Constitution, 1992. A justiciable issue
Akin to the argument that the action is speculative is Honourable Mr Martin Amidu’s
argument that the action seeks an advisory opinion. And for this he relied on Bilson v
Attorney-General (supra). Of course, the Ghana Supreme Court, like the United States
Supreme Court, has no jurisdiction to offer advisory opinion. Attempts at the drafting
stage of the Constitution, 1992 to confer such jurisdiction on the Supreme Court, was
hotly resisted, and therefore the same was abandoned.
As to when an action seeks an advisory opinion, the exposition of Adade JSC in Bilson v
Attorney-General (supra) is instructive. In that case Bilson sought declaratory reliefs not
founded on any act or omission of any person; neither did he allege that any conduct or
law was inconsistent with a provision of the Constitution, 1992. In dismissing the action,
Adade, JSC said at 000?:
“I read the plaintiff’s writ and statement of case, and I ask myself a simple question: has
any occasion arisen to necessitate the call for interpretation? Does the writ, or the writ
statement of case together, disclose any occasion? . . . Ours is to interpret the Constitution
in the context of disputes, broadly interpreted? Ours is not to render advice to prospective
litigants, that is the role of the solicitors in private practice.”
37
Do we find the same situation in the instant case? Emphatically No! For the New Patriotic
Party is alleging in this case that the first defendant had taken a decision to put forward
the third defendant as its parliamentary candidates in the 2000 parliamentary elections.
Certainly our legal system empowers a person aggrieved by the decision of even a court,
to take steps to set it aside. And the basis for seeking to set it aside is that the said decision
violates article 94(3)(b). The plaintiff herein is therefore not seeking any advisory opinion
as the action is founded on an allegation of a definite act, to wit the decision by the first
defendant to put forward the third defendant as a candidate, which act is alleged to be
unconstitutional.
On the issue that the action raises no issue of interpretation, Nana Akufo Addo
responded that what the plaintiff has invoked is the enforcement jurisdiction. And from
my analysis, it is obvious that I agree with him.
My lords, the decision that the Supreme Court, and for this matter no other court, has no
jurisdiction in this case in the face of definite justiciable allegations against the defendants
is unfortunate. It is inconsistent with the rule of law, and subversive of our constitutional
democracy which guarantees unimpeded access to the courts and consequently renders
constitutional any clause in an enactment ousting the jurisdiction of the courts: see Sam
(No 2) v Attorney-General (supra) where this court held that section 15 of PNDCL 236
which sought to oust the jurisdiction of the courts, was unconstitutional. See also the
South African case of Staats-president v United Democratic Front (1988) 4 SA 830A.
On my part, I have not the slightest doubt in my mind that this court has jurisdiction.
There should certainly be no failure of justice. It was for the above reasons that I voted
on 15 November 2000 to dismiss the Attorney-General’s objection as untenable.
Atuguba JSC. The facts of this matter have been stated in the opinions which have
preceded mine and I would not restate them except where necessary. The plaintiff’s writ
discloses that the nature of the reliefs sought is as follows:
“(1) A declaration that the decision by the first defendant to put forward the second and
third defendants as candidates of the first defendant in the 2000 parliamentary elections
for Asante Akyem North and Bosomtwe constituencies respectively is inconsistent with
and in contravention of the Constitution, in particular article 94(3)(b) thereof and is
accordingly null void and of no effect.
the second and third defendants as its parliamentary candidates in the 2000 elections in so
38
(4) Such other orders as to this court may deem meet.”
The fourth defendant, the Attorney-General, has brought this motion to set aside the said
writ on the following grounds:
“(a) The plaintiff’s wit and statement of case disclose no cause of action premised on articles
2(1)(b),94(3)(b) and 130(1)(a).
(b) The plaintiff’s writ and statement of case constitute an invitation to the court to
speculate whether the second and third defendants will qualify for nomination as
parliamentary candidates when the Electoral Commission issues a writ of election and
gives notice of nomination pursuant to the Public Elections Regulations, 1996 (CI 15).
(c) Article 94(3)(b) of the Constitution is clear and unambiguous and does not call for
interpretation or enforcement.
(d) The plaintiff’s action is seeking for an advisory opinion from the court.”
When argument on the motion opened before us, the Honourable Deputy Attorney-
General, Mr Martin Amidu, sought, with astute ingenuity, to draw a distinction between
qualifications for membership of Parliament on the one hand and qualifications for
election for membership of Parliament, on the other hand. He contends that article
94(3)(b) of the Constitution, 1992, read with other provisions of the Constitution such as
articles 62 and 63, shows that it does not deal with the question of an election of a person
to the office of member of Parliament but rather with the qualification and eligibility of a
person to a member of Parliament. He submits that article 94(3)(b), read together with
article 99 of the Constitution and the decision of this court Yeboah v JH Mensah [1998-99]
SC GLR 492, shows that it does not come into play until after a election has been held. He
contends that where the Constitution intends to deal with the issue of election to an office,
it does so clearly and unambiguously. In this vein, contrasts have been drawn, as
aforementioned, with articles 62 and 63 of the Constitution, 1992 which clearly deal with
the election of the President. The contrasts extended to the Constitution, 1969 and 1979 of
Ghana.
While I find the references of the Honourable Deputy Attorney-General ingenious and
very useful, I am unable to agree with him that their effect is to unrelate the provisions
of article 94(3)(b) of the Constitution to the question of election of a person as member of
Parliament, except in the event of an actual election having taken place. There is no doubt
that the meaning of the words of a provision of a statute can be clarified or ascertained
39
by reference to some other provisions of the same statute, as the Honourable Deputy
Attorney-General seeks to do in this case: see Asare v The Republic [1968] GLR 37 at 46,
CA (full bench) and Secretary of State for Defence v Warn [1970] AC 394 at 410, HL. And
so it is often said that a statute must be read as a whole.
Article 94(3)(b) of the Constitution, 1992 provides as follows:
“(3) A person shall not be eligible to be a Member of Parliament if he—
(b) is a member of the Police Service, the Prison Service, the Armed Forces, the
and Preventive Service, the Immigration Service, or the Internal Revenue Service .
. .”
(The emphasis is mine.) Article 62 of the Constitution, 1992 also provides, as far as
relevant as follows:
“62. A person shall not be qualified for election as the President of Ghana unless—
(a) he is a citizen of Ghana by birth;
(b) he has attained the age of forty years; and
(c) he is a person who is otherwise qualified to be elected a Member of Parliament,
except that the disqualifications set out in paragraphs (c), (d) and (e) of clause (2)
of article 94 of this Constitution shall not be removed, in respect of any such person,
by a presidential pardon or by the lapse of time as provided for in clause (5) of that
article.”
One must therefore turn to article 94(2) of the Constitution, 1992 which provides:
“(2) A person shall not be qualified to be a member of Parliament if he—
(a) owes allegiance to a country other than Ghana; or
(b) has been adjudged or otherwise declared—
(i) bankrupt under any law in force in Ghana and has not been discharged; or
(ii) to be of unsound mind or is detained as a criminal lunatic under any law in
force in Ghana; or
(c) has been convicted—
(i) for high crime under this Constitution or high treason or treason or for an offence
involving the security of the State, fraud, dishonesty or moral turpitude; or
(ii) for any other offence punishable by death or by a sentence of not less than ten
years; or
40
(iii) for an offence relating to, or connected with election under a law in force in
Ghana at any time; or
(d) has been found by the report of a commission or a committee of inquiry to be
incompetent to hold public office or is a person in respect of whom a commission or
committee of inquiry has found that while being a public officer he acquired assets
unlawfully or defrauded the State or misused or abused his office, or willfully acted in a
manner prejudicial to the interest of the State, and the findings have not been set aside on
appeal or judicial review; or
(e) is under sentence of death or other sentence of imprisonment imposed on him by any
court . . .”
It is true that article 62 of the Constitution, 1992, unlike article 94 of the Constitution, 1992,
opens up with language which ex facie expressly connects its ensuing provisions with an
election, thus: “A person shall not be qualified for election . . . (The emphasis is mine.)
But clause (c) of article 62 of the Constitution, 1992 makes it quite clear that it co-opts the
qualifications for election as member of Parliament or, in more legalistic fashion, adopts
or incorporates into itself by reference all the qualifications for the election of a person as
a member of Parliament and makes them qualifications for election as President, also. It
must be noted that article 62(c) of the Constitution, 1992 does not refer to any specific
provisions of the Constitution, 1992 or any other law as governing the qualifications for
election of a person to Parliament, otherwise than in an exclusionary manner, namely, (as
hereinbefore set out):
“except that the disqualifications set out in paragraphs (c), (d) and (e) of clause 2 of article
94 of this Constitution shall not be removed, in respect of any such person, by a presidential
pardon or by the lapse of time as provided for in clause (5) of that article.”
(The emphasis is mine.) Clearly, if the disqualifications set out in the named paragraphs
of article 94(2) do not relate to an election of a member of Parliament, their mention in
article 62(c) which deals with the need for a presidential candidate to be also “otherwise
qualified to be elected a Member of Parliament” (emphasis is mine.) would have been
unnecessary and inexplicable.
Now, the effect of the said exclusionary provision in article 62(c) is that the Constitution,
1992 has therein, by itself, revealed a construction of the provisions of article 94(2)(c), (d)
and (e), namely, that they relate to qualifications for election to membership of Parliament
and that a pardon or the lapse of time in respect of them under article 94(5) of the
Constitution, 1992, which would operate to qualify a person to whom they are applicable
for election as member of Parliament and consequently also for election as President
under article 62(c) of the Constitution, 1992, should not have that effect in the case of a
41
presidential election. This is the effect of article 62(c) of the Constitution, 1992, in spite of
the fact that the excepted provisions, namely 94(2)(c) to (e) of the Constitution, 1992 form
part of a litany of provisions under article 94(2) of the Constitution, 1992 which are all
governed by its opening words: “A person shall not be qualified to b a member of Parliament .
. .” (The emphasis is mine.)
To reiterate, though the opening words of article 62 of the Constitution, 1992 clearly relate
its provisions to the issue of election of a President, they do not show that, contrariwise,
the provisions of article 94(2) of the Constitution, 1992 which relate opaquely to
qualifications for membership of Parliament without the express reference to the issue of
election therein, do not relate to that issue at all. In other words, the relevance of the
provisions of article 94(2)(c) to (e) and (5) of the Constitution, 1992 to the admittedly
electoral provisions of article 62(c) of the Constitution, 1992, depends first and foremost
on their being electoral themselves. They are so regarded or contemplated by article 62(c).
In Ekwam v Pianim (No 2) [1996-97] SC GLR 120, this court had to construe the provisions
of articles 62(c) and 94(2)(c) of the Constitution, 1992 and it is plain from a reading of that
case that the court unanimously held the view that the provisions of article 94(2) of the
Constitution, 1992 relate to qualifications for election to Parliament and, on that basis,
gave rise to the question whether they disqualified the defendant from presidential
election under article 62(c) of the Constitution, 1992 aforesaid. That being so, the
provisions of article 94(3)(b) of the Constitution, 1992, which are the immediate issues in
this case, are similarly provisions relating to election to Parliament. The opening words
of article 94(3) of the Constitution, 1992 are very like those of article 94(2) of the
Constitution, 1992 aforesaid, and run thus: “(3) A person shall not be eligible to be a
member of Parliament. . .” If such similar words in article 94(2) of the Constitution, 1992
govern provisions which under article 62(c) of the Constitution, 1992 pass for electoral
provisions, why should not those governed by practically the same words in article 94(3)
of the Constitution, 1992 similarly pass for electoral provisions? Clearly the variation in
language in articles 62 and 64 of the Constitution, 1992 is for purposes of elegance only
and not for a change in meaning or intent. Thus in Bilson v Apaloo [1981] GLR 24 at 85,
SC it is stated:
“. . . in Hadley v Perks (1866) L.R. 1 Q.B. 444 at p. 457 the principle as we were to inherit
it, was succinctly stated by that great master of the common law, Blackburn J.:
‘It has been a general rule for drawing deeds and other legal documents from the
earliest times, which one is taught when one first becomes a pupil to a conveyancer,
never to change the form of words unless you are going to change the meaning, and
42
it would be as well if those who are engaged in the preparation of acts of parliament
would bear in mind that that is the real principle of construction.
But in drawing acts of parliament, the legislature, as it would seem, to improve the
graces of the style, and to avoid using the same words over and over again,
constantly change them.’
As has been consistently maintained by all the authorities without exception, this principle
of construction is inapplicable if it appears that the law-giver or the draftsman may be
trying to avoid inelegance occasioned by repetition rather that change of meaning.”
(The emphasis is mine.) Further, the combined effect of articles 47(1) and 93(1) of the
Constitution, 1992 is that the whole idea of membership of Parliament under the
Constitution, 1992 is based on and inextricably bound to the electoral process. Article
47(1) provides of the Constitution, 1992:
“47. (1) Ghana shall be divided into as many constituencies for the purpose of election of
members of Parliament as the Electoral Commission may prescribe, and each constituency
shall a represented by one member of Parliament.”
(The emphasis is mine.) Pausing here for a moment, it is clear beyond argument that one
cannot be a member of Parliament unless one is elected as a member of Parliament for a
certain constituency. This is strengthened by article 93(1) of the Constitution, 1992 which
provides: “There shall be a Parliament of Ghana which shall consist of not less than one
hundred and forty elected members.” (The emphasis is mine.) Indeed the qualifications
for membership of Parliament immediately follow upon this provision and are only
consequential to that provision: see article 94(1) to (5) of the Constitution, 1992. Indeed,
article 94(1)(b) of the Constitution, 1992 is couched in terms which leave no doubt that
the Constitution, 1992 regards the issue of election of a person for membership of
Parliament conveyed by articles 47(1) and 93(1) of the Constitution, 1992 as a datum. It
provides:
“94. (1) Subject to the provisions of this article, a person shall not be qualified to be a
member of Parliament unless—
(h) he is resident in the constituency for which he stands as a candidate for election
to Parliament or has resided there for a total period of not less than five years out
of the ten years immediately preceding the election for which he stands, or he hails
from that constituency.”
(The emphasis is mine.) Again, the grounds of tenure of office by the Speaker of
Parliament and his deputies as, inter alia, contained in articles 95(2)(c) and 96(3) of the
Constitution, 1992, help to show that the qualifications for membership of Parliament are
43
intended by the Constitution, 1992 to relate to election for Parliament. Article 95(2)(c) of
the Constitution, 1992 provides:
“(2) The Speaker shall vacate his office—
(b) if any circumstances arise that, if he were not Speaker would disqualify him for
election as member of Parliament.”
(The emphasis is mine.)Article 96(3) of the Constitution, 1992 applies, inter alia, this
provision to a Deputy Speaker of Parliament also. Article 95(2) of the Constitution, 1992
clearly shows that there are circumstances in which a person may be disqualified from
being elected as a member of Parliament. If such circumstances can be found, though not
exclusively in the constitution, then clearly they are electoral matters. If such
circumstances cannot be found, then it means that this provision is meaningless. It is of
course trite law that every part of a statute is meant to have effect and as much as possible
the court must ensure that that is so.
Before the Constitution, 1992 came into force the Representation of the People Law, 1992
(PNDCL 284) mainly regulated elections to Parliament. A reading of section 9 of that Law
reveals that its provisions have been adopted by article 94 of the Constitution, 1992
virtually word for word. Section 9 of PNDCL 284 opens as follows: “9.(1) A person shall
not be qualified to be a candidate for the office of member of Parliament unless . . .” (The
emphasis is mine.) There can be no doubt that this provision relates to qualifications for
candidature and therefore election to Parliament. This opening provision is followed by
section 9(2) which runs: “(2) A person shall not be qualified to be a member of Parliament.
. .” This language is a clear truncation of the longer version of the preceding section 9(1)
There is no earthly reason why the qualifications in section 9(1) of PNDCL 284 were
meant to govern qualifications for election to Parliament whereas those under section 9(2)
of that Law were not so meant.
That being so, the slight variation in language between the two sets of provisions in
section 9(1) and (2) of PNDCL 284 is explicable, as aforesaid, only on grounds of elegance.
These provisions, being in pari materia with article 94 of the Constitution, 1992 help to
show therefore that their counterparts in the said article 94 of the Constitution, 1992 also
refer to election of members of Parliament. That being so, the provision article 95(2)(c) of
the Constitution, 1992, aforementioned, are referable also to article 94(1) to (5), which also
therefore concern elections to Parliament. This also applies to articles 44(1) concerning
appointment of members of the Electoral Commission; article 78(1) of the Constitution,
1992, concerning appointment of ministers of State; and article 32(3), concerning
members of the National Commission for Civic Education. I have no doubt at all that
when articles 47(1), 62(c), 93(1), 94 and 99(1) of the Constitution, 1992 are read together,
44
the expressions, “shall not be qualified to be a member of Parliament” or “shall not be

eligible to be a member of Parliament” in article 94(1), (2) and (3) respectively, can only
mean, shall not be qualified to be elected a member of Parliament. (The emphasis is mine.)
The effect of these expressions is therefore the same as the provisions of section 1 of the
Elections and Public Offices Disqualification (Disqualified Persons) Decree, 1978 (SMCD
216) which had used the expression disqualified from being elected: see Nyame v Mensah
[1980] GLR 338.
What I said in Yeboah v JH Mensah [1998-99] SC GLR 492 at 458 is also therefore germane
to this case. I said:
“That it is clear . . . that, the provisions of article 71 concerning qualifications for
membership of the National Assembly were inextricably bound to the actual electoral
process and has significance only in terms of the actual electoral process. It is crystal clear
that under those provisions, no cause of action could lie against anyone for failing to meet
the qualifications for membership of Parliament unless he took a step in the electoral process
itself.”
This statement obviously relates to all steps leading to the election of a person as a
member of Parliament and not just the actual election only. At 555 I further said:
“It is . . . clear that the canusa cansans of membership of Parliament is a person’s electoral
victory and that an action to unsea a member of Parliament is, in essence, an action
impeaching his election to Parliament.”
(The emphasis is mine.) This clearly refers to a victory resulting from the pursuit of or
engagement in the electoral process, ie a process of diverse steps culminating in being
elected as a member of Parliament.
If the qualifications for membership of Parliament were not relevant to the election of a
member of Parliament, how could they become relevant to the issue of election after an
election has been had, under article 99(1)(a) of the Constitution, 1992 as was contended
by the Honourable Deputy Attorney-General? Surely, if the qualifications for
membership to Parliament have no bearing on the question of election of a member of
Parliament then they ought not to be relevant to the question whether “a person has been
validly elected as a member of Parliament” under article 99(1)(a) of the Constitution,
1992. (The emphasis is mine.) But if, as conceded by the Honourable Deputy Attorney-
General and as established by this court in Yeboah v JH Mensah (supra), the qualifications
for membership of Parliament, which in that case centred around article 94(1)(b) of the
Constitution, 1992, are relevant to the validity of a person’s actual election as member of
Parliament under article 99(1)(a) of the Constitution, 1992 aforesaid, then it means that
the real issue arising thereunder is whether the member of Parliament in question had
45
been qualified, prior to and at the time of his election, to be elected as such and not
otherwise. In other words, if the qualifications for membership of Parliament were not
connected with the issue of election to Parliament, then those qualifications (and
disqualifications) could not at all have effect on the validity of the election of a person as
a member of Parliament. I would therefore hold that article 94(3)(b) of the Constitution,
1992 on which the plaintiff has founded his action concerns the electoral process and not
merely qualifications for membership of Parliament divorced from the electoral process,
as contended by the Honourable Deputy Attorney-General.
Article 99 of the Constitution, 1992 cannot preclude an action in this court to enforce the
provisions of article 94(3)(b) of the Constitution, 1992 before an election is held. Article
99 in full runs:
“99. (1) The High Court shall have jurisdiction to hear and determine any question
whether—
(a) a person has been validly elected as a member of Parliament or the seat of a
member has become vacant; or
(b) a person has been validly elected as a Speaker of Parliament or having been so
elected, has vacated the office of Speaker.
(2) A person aggrieved by the determination of the High Court under this article may
appeal to the Court of Appeal.”
(The emphasis is mine.) These provisions were construed by this court in Yeboah v JH
Mensah (supra) and it was held that where the substance of a person’s action is a
challenge to the validity of an election which has taken place, then the High Court under
the said provisions is the court which has jurisdiction to determine the same and that as
the plaintiff’s action in that case was such an action, this court has no jurisdiction over
the same.
In the instant case no election has as yet taken place, indeed it is contended that at the
time of the institution of this action, no electoral writ had been issued by the Electoral
Commission. I do not therefore see how this action is within the purview of article 99. It
is true that in construing the provisions of a written Constitution a broad, liberal and
purposive approach as opposed to a literalistic one should be adopted: see Tuffour v
Attorney-General [1980] GLR 637 CA; Minister of Home Affairs v Fisher [1979] 3 All ER
321, PC and Liyanage v R [1966] 1 All ER 650, PC. But, as was pointed out Apaloo CJ in
Kwakye v Attorney-General [1981] GLR 944 at 958, SC:
“We must have regard to the terms of our particular Constitution whose specific reference
points are largely unique to our national history . . . I think originality is required of us in
46
the exercise of our original jurisdiction if we are to attend to the letter and spirit of the
Constitution as the basic law of our land. That originality must, of course, be judicial and
must not do damage to the plain and obvious meaning of the words used nor is it the
province of this court to be astute to find some reason or other for depriving the
constitutional provision of an effect clearly intended.”
(The emphasis is mine)
As article 99 is plainly and obviously addressed by the Constitution, 1992 to a situation
of an election had and gone, 1 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.
The plaintiff’s case here is for the enforcement of article 94(3)–(b) of the Constitution, 1992
which he says the defendants have infringed and is squarely within the purview of this
court’s jurisdiction under articles 2(1) and 130 of the Constitution, 1992. Article 99 of the
Constitution, 1992, be it noted, is not an enforcement provision; were it so the
Constitution, 1992 would have made an exception to cover it as it has done with respect
to the enforcement jurisdiction of the High Court with regard to the fundamental human
rights. It has been contended that the plaintiff’s case does not disclose any cause of action,
in that it is speculative as to whether the National Democratic Congress Party, the first
defendant herein, will in fact adopt him as their parliamentary candidate when the writ
for parliamentary elections is issued. I would enjoin myself from readily acceding to this
contention. As stated in Kwakye v Attorney-General (supra) at 13, SC: “If we construe
article 2(1)(b) alright,” person “ is entitled to invoke the jurisdiction of this court as soon
as the act complained of was committed or even threatened.” See also Sam (No 2) v
Attorney -General [2000] SC GLR 305. This means that the jurisdiction of this court covers
actions in which the act complained of has actually been committed as well as quia timet
actions. See as to the latter, Nyame v Mensah (supra). In my opinion the nature of a quia
timet action involves some amount of speculation, the acceptable limits to which must be
ascertained with care. And it has been said in Bilson v Attorney-General [1993-94] 1 GLR
104 at 108, SC, per Adade JSC that this court’s jurisdiction “is to interpret the Constitution,
1992 in the context of disputes broadly interpreted.” (The emphasis is mine.) It has further
been said that for an act to be actionable in this court the conduct need not contravene a
provision of the Constitution, but it suffices if it is merely inconsistent with the
47
Constitution: see New Patriotic Party v Attorney-General [1993-94] 2 GLR 35, SC (31st
December case). Again in Ekwam v Pianim (supra), at the time the action was brought,
the facts that grounded it were the defendant’s open declaration of intent and his offering
of himself to contest for election as a presidential candidate of the New Patriotic Party for
the 1996 presidential elections. The issue of an election writ being issued or not did not
seem to have been material to sustain that action. Even though that case was an action
for declaration and the present one is for enforcement of the Constitution, I do not think
this difference is material; for even a declaratory action cannot be hypothetical: see In Re
Croydon Development Plans 1954 and 1959 [1967] 2 All ER 589; Argosam Finance Co Ltd
v Oxby [1964] 3 All ER 561, CA; Bilson v Attorney-General (supra) and Tuffour v
Attorney-General [1980] GLR 637, CA. The latter dispensed only with the need for a
citizen of Ghana privately to have locus standi to invoke this court’s jurisdiction, but not
the need for a controversy in its other dimensions. It is however not necessary for me to
decide whether the plaintiff’s action is hypothetical, in view of the conclusion I have
reached in this case.
Assuming the plaintiff has a cause of action in this case, the question still remains whether
he has properly invoked the jurisdiction of this court. Article 94(3)(b) of the Constitution,
1992. on which the plaintiff founds his action runs:

(b) is a member of the Police Service, the Prisons Service, the Armed Forces, the
and Preventive Service, the Immigration Service, as the Internal Revenue Service.”
As I noted earlier, the qualifications for membership of Parliament in article 94(1) to (5)
of the Constitution, 1992, have been adopted, virtually wholesale, ipsissima verba, from
section 9 of PNDCL 284. Section 9(3) thereof runs:
(c) is a member of the Police Service, the Prisons Service, the Armed Forces, the
Parliamentary. Service, the Statistical Service, the National Fire Service, the
Customs, Excise and Preventive Service, the Immigration Service or the Internal
Revenue Service.”
48
It is thus plain that the plaintiff in this case seeks to litigate before this court the identical
question which arises under article 94(3)(b) of the Constitution, 1992 which also arises
under PNDCL 284. The only difference is that in the one case it arises under the
Constitution whereas in the other case, it arises under ordinary legislation. But statutory
badges apart, is the issue different? I think not. In either situation, precisely the same
criteria are involved. The practice direction, Practice Direction (Practice and Procedure of
the Supreme Court) [1981] GLR 1, SC states in paragraph 6:
6. “It is also to be noted that where a cause or matter can be determined by a superior court
other than the Supreme Court, the jurisdiction of the lower court shall first be invoked. The
Supreme Court may dismiss any such cause or matter, with punitive costs to be paid
personally by counsel or by the party responsible for bringing such cause or matter to the
Supreme Court in the first instance.”
(The emphasis is mine.)
Views may vary and may continue to vary as to whether a cause or matter which arises
under a Constitution can be said to be the same as one, although identical, which arises
under ordinary legislation. Be that as it may, a cause of action is roughly speaking that
combination of facts which if asserted by the plaintiff and denied by the defendant, would
have to be proved by the plaintiff if he is to succeed: See O’Connor v Isaacs [1956] 2 All
ER 417, CA: Robinson v Unicos Property Corporation [1962] 2 All ER 24, CA and Hartley
v Ejura Farms (Ghana) Ltd [1977] 2 GLR 179, CA (full bench). Nor would the more
restrictive view of what constitutes a cause or matter in Tuffour v Attorney-General
(supra) improve the situation. Applying this test, I do not see how the essential facts
which the plaintiff must prove to obtain judgment in his favour would differ if he
proceeds under article 94(3)(b) of the Constitution, 1992, rather than under the identical
provision in section 9(3)(b) of PNDCL 284. It is however clear that if he does prove the
same set of facts in either of the two situations or actions, he would get the desired
remedy; except that if he proceeds under article 94(3)(b) of the Constitution, 1992. he
would have the advantage of making his opponent drink constitutional vinegar,
especially in view of the constitutional powers and sanctions attendant upon an action
under article 2(1) of the Constitution, 1992. It cannot be said that such differences alter
the terms of the practice direction in any way. I would however remark that paragraph 6
of the Practice Direction (supra) is couched in permissive, not mandatory language. It is
therefore, discretionary. I would even go as far as to say that being a rule of practice, it is
not, dehors the purview of rule 79 of the Supreme Court Rules, 1996 (CI 16) which
provides as follows:
49
“79 Where a party to any proceedings before the Court fails to comply with any provision
of these Rules or with the terms of any order or direction given or with any rule or practice
or procedure directed or determined by the Court. the failure to comply shall be a bar to
further prosecution of proceedings unless the Court considers that the non-compliance
should be waived.”
But, as I said in Republic v High Court, Kumasi; Ex parte Atumfuwa [2000] SC GLR 72,
the mere fact that a breach of the rules of court can be waived under this provision is no
guarantee that waiver will be automatic. Several matters will have to be considered.
In Oppong v Attorney-General [2000] SC GLR 275, this court upheld a preliminary
objection to the plaintiff’s action, on the ground inter alia that he had failed to file a
statement to support his writ invoking the original jurisdiction of this court. This court
did so under rule 46(3) of the Supreme Court Rules, 1996 (CI 16) which runs:
“(3) Where the statement of the plaintiff’s case is not filed within fourteen days of the filing
of the writ, the respondent may apply to the court to have the action struck out”
This rule is of course discretionary, but waiver was refused. In determining whether to
hold the breach of the Practice Direction adversely to the plaintiff in this case, I bear in
mind the unanimous judgment of the Court of Appeal, (then the highest court in Ghana)
in Ennin v The Republic [1976] 1 GLR 326, CA on which I relied in British Airways v
Attorney-General [1996-97] SC GLR 547. Delivering the judgement of the court in the
Ennin case (supra), Apaloo CJ at 334 said, in reaction to a contention seeking to vitiate a
conviction of the appellant on constitutional grounds:
“It is not in fact necessary to decide this case on any constitutional grounds because the
steps that have been taken to provide for the appellant’s representation and procure medical
evidence helpful to him, seem to us more than ample. Nothing has been done which offends
our sense of propriety and fairness. Accordingly, we ought to resist the temptation of
pronouncing on arid constitutional questions. Perhaps in this, we might take a cue from
the United States Supreme Court which has a philosophy that while it has s duty to decide
constitutional questions it must escape that duty if possible. As Frankfurter put it in his
Law and Politics 25(1939) (as quoted in Constitutional Law, Cases and other Problems
(2nd ed) Vol 1 at p 108, edited by Freund, Sutherland, Howe and Brown):
‘But the Court has improved upon the common law tradition and evolved rules of
judicial administration especially designed to postpone constitutional adjudication
and therefore constitutional conflicts until they are judicially unavoidable. The
Court will avoid decision on grounds of constitutionality if a case may go off on
some other ground, as, for instance, statutory construction.’’
50
The policy justification for this philosophy is to avoid ‘the mischief of premature judicial
intervention.’ The United States Constitution has survived two centuries, and the
Supreme Court has found this a workable rule designed to avoid constitutional conflicts.
But constitutions that we enacted for ourselves, ie the 1960 and 1969 Constitutions have
been either abrogated or suspended and we think, we more than the United States Supreme
Court, should tread warily . . .”
(The emphasis is mine.) I cannot but feel that paragraph 6 of the Practice Direction (supra)
has been informed by these pronouncements, especially when at all material times,
Apaloo CJ was such in Ghana.?
Similarly, it has been held that an action which seeks to circumvent the requisite
procedure is an abuse of the process which can be struck out, even in constitutional
matters. Thus in Attorney-General of Trinidad and Tobago v McLeod [1984] 1 All ER 694
at 700, PC, it was held, following Harrikissoon v Attorney-General of Trinidad and
Tobago [1980] AC 265 at 268 that the invocation of the procedure for ventilating the
fundamental human rights may well be frivolous and vexatious, and an abuse of the
court’s process when resorted to as a device for circumventing the procedure for
questioning administrative action: see also O’Reilly v Mackman [1982] 3 All ER 1124, HL
followed in Cocks v Thanet District Council [1982] 3 All ER 1135, HL in which it was held
that the resort to a writ for ventilating a right under public law was an abuses of the
court’s process for circumventing the procedure under Order 53, r 1 of the English
Supreme Court Rules, which required an application in such cases for leave for judicial
review.
The vibrancy of the Practice Direction has been asserted in Edusei v Attorney-General
[1996-97] SC GLR 1, Republic v Numapau; Ex parte Ameyaw II (No 2) [1998-99] SC GLR
639 as well as on its review, reported as Republic v Namapau; Ex parte Ameyaw (No 3)
[2000] SC GLR 59. In the latter case it was held, inter alia, that where an alleged contempt
in punishable either by the High Court or this court, the Practice Direction (supra)
requires prior resort to the High Court. In the instant case the plaintiff’s action could have
been brought under section 9(3)(b) of PNDCL 284 aforesaid. That law is part of the
existing law which the Constitution, 1992 allows to continue in operation on pain of only
inconsistency with it. There is no inconsistency between it and the Constitution. Indeed,
the Constitution, 1992 itself admires its provisions, particularly with regard to
qualifications for election to Parliament, so much that it has, as noted earlier, adopted
them virtually wholesale et ipsissima verba in article 94. It follows that the enforcement
of those provisions by a court with the requisite jurisdiction does not infringe the
Constitution, 1992. Needless to say, the appropriate court with jurisdiction over matters
arising from the parliamentary electoral process, where no election has as yet taken place
51
under PNDCL 284, is the High Court: see Nyame v Mensah (supra) where Mr JH Mensah
was restrained by the High Court, Sunyani from contesting the then parliamentary
elections under the Elections and Public Offices Disqualification (Disqualified Persons)
Decree, 1978 (SMCD 216).
Under the Constitution, 1992 the High Court has, subject to the provisions of the
Constitution, virtually plenary jurisdiction in all cases. Article 140(1) of the Constitution,
1992, runs:
“140 (1) The High Court shall, subject to the provisions of this Constitution, have
jurisdiction in all matters and in particular, in civil and criminal matters and such original
appellate and other jurisdiction as may be conferred on it by this Constitution or any other
law.”
(The emphasis is mine.) On the face of this provision, it cannot be said that the High Court
has no jurisdiction to enforce the kindred provisions of section 9(3)(b) of the Constitution,
1992. aforesaid against the defendant in this case, assuming a cause of action has arisen
thereunder. In so doing, the High Court, although dealing with the same matter covered
by article 94(3)(b) of the Constitution, 1992 would still not be violating the exclusive
jurisdiction of this court in inter alia, matters of enforcement of the Constitution, 1992
because it would be enforcing ordinary legislation which is not within the purview of the
Constitution, 1992 except where allegation of ultra vires ordinary legislation are involved
article 130(1)(b) of the Constitution, 1992, which runs:
“130. (1) Subject to the jurisdiction of the High Court in the enforcement of the
Fundamental Human Rights and Freedoms as provided in article 33 of this Constitution,
the Supreme Court shall have exclusive original jurisdiction in—
(b) all matters arising as to whether an enactment was made in excess of the powers
conferred on Parliament or any other authority or person by law or under his
Constitution.”
(The emphasis is mine.) No issue as to this jurisdiction is involved in the present action.
After all the Courts Acts, over the years have also without confrontation, conferred on
courts the same jurisdiction as exists under the Constitution, 1992. Consequently, the
plaintiffs action herein is also properly cognisable by the High Court.
I would also point out that the Constitution, 1992 expects that all laws in Ghana, including
itself, would be defended and not just itself alone. See article 41(b) of the Constitution,
1992. on the directive principles of State Policy. It provides:
“41. The exercise and enjoyment of rights and freedom is inseparable from the performance
of duties and obligations and accordingly, it shall be the duty of every citizen—
52
(b) to uphold and defend this Constitution and the law.”

(The emphasis is mine) This provision relates to citizens, but this court has often extended
to artificial persons, such as the plaintiff, rights which are prima facie for natural persons.
In any case the directive principles are general guides. See article 34(1) of the
Constitution.
In one respect however, the plaintiff’s action seems to be value added, in that he does not
rely only on article 94(3)(b) of the Constitution, 1992, but also on the Constitution, 1992
generally. That smacks of evasive pleading. Nonetheless, in his argument before us, Nana
Akufo-Addo contended, if I understood him right, that the spirit of the Constitution, 1992
reveals its disapproval of participation in politics by persons in the public service and this
should bear on the question whether the third defendant is qualified to be a
parliamentary candidate or not. Whatever provisions of the Constitution are relevant to
such a consideration must be provisions that can legitimately bear on the question of
eligibility for parliamentary candidature. That being so, since I have already shown that
the provisions of the Constitution on that issue are congruent with the provisions of
PNDCL 284, it follows that the plaintiff can make a similar contention under PNDCL 284
with the same profit, if any, as he could have derived from the reliance on the provisions
of the Constitution, 1992. The spirit of ordinary legislation is also relevant to its
construction. That is conveyed, inter alia, by the rule of construction that verba ita sunt
intelliegenda ut res magis valeat quam pereat, or the rule about purposive construction,
as it is sometime called: see Benneh v The Republic [1974] 2 GLR 47, CA (full bench);
Amuzu v Oklikah [1998-99] SC GLR 141; Eshun v Poku [1989-90] SC GLR 572 and Sasu v
Amua-Sekyi [1987-88] 1 GLR 506, CA.
For all the foregoing reasons, the plaintiff ought not, in breach of the Practice Direction
(supra), aforesaid, to mount his action in this court on constitutional grounds when the
matter can be litigated on the provisions of deputy legislation, namely PNDCL 28 in the
High Court in the first instance.
I would therefore uphold the preliminary objection. That objection was not founded and
argued on the Practice Direction; (supra) but the point being jurisdictional, I deem it pars
judicis to take it.
As I am not deciding this action on the merits, I do not think it is material whether I strike
it out or dismiss it. I would, therefore, for the sake of uniformity on the majority side of
this court, also dismiss the plaintiff’s action.
By way of an addendum, I would say that prima facie my ruling in this case would seem
to conflict with my stand in Yeboah v JH Mensah (supra). Certain dicta therein do give
that impression. However, there was the need in that case to ascertain the jurisdictional
53
interrelationship between article 2(1) and 130 of the Constitution, 1992. on the one hand
and the High Court’s jurisdiction under article 99 on the other hand, which are all
contained in the same Constitution, 1992 and would seem to conflict with each other over
disputes arising under article 94 of the Constitution, 1992 unless the dividing lines are
clearly drawn. But in the present case the matter falls within the enforcement jurisdiction
of this court under the Constitution, 1992 and also under ordinary legislation. There is
nothing in PNDCL 284 which purports to enable the High Court to share in jurisdiction,
over constitutional issues, with any other court vested with such jurisdiction under the
Constitution, 1992.
PNDCL 284 does not confer or purport to confer constitutional jurisdiction. The exclusive
jurisdiction of this court relates to constitutional provisions. If however PNDCL 284
purports to disallow a qualification for membership Parliament which is allowed by the
Constitution, 1992 or vice versa, then a conflict could arise with the Constitution, 1992.
Nothing of the sort arises between PNDCL 284 and the Constitution, 1992. Indeed, as I in
effect said earlier, the qualifications for membership of Parliament under PNDCL 284 and
the Constitution, 1992 are identical twins and therefore exude the best harmony.
Nowhere does PNDCL 284 claim to be a Constitution, 1992 also.
54

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NEW PATRIOTIC PARTY

to approve their nomination as parliamentary candidates in the November 2000 Elections

have relied on newspaper publications in support or defence of their case. No fetish

the expressions, “shall not be qualified to be a member of Parliament” or “shall not be

“(3) A person shall not be eligible to be a member of Parliament if he—

(b) to uphold and defend this Constitution and the law.”

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