pages.gif

Second, that the failure or refusal of the Electoral Commission, hereinafter called the defendant, to publish the results of the Presidential Elections embodying the required details amounted to a violation of article 45 of the 1992 Constitution, section 2 of the Electoral Commission Act, 1993 (Act 451), certain provisions of the Public Elections Regulations, 1996 (CI 1?), and the Presidential Elections (Amendment) Act, 1996 (Act 520). Third, that the Declaration of President Elect Instrument, 2004 to the extent that it did not include the full and complete results of the 7 December 2004 Presidential Elections, could not form the basis of the exercise of any right envisaged under the 1992 Constitution in respect of or pursuant to the said Declaration.

The defendant in its statement of defence denied the plaintiffs' claims. On the pleadings and submissions made before the trial :::ourt, both parties prayed for referral to the Supreme Court for its interpretative opinion under article 130(2) of the Constitution, the following three issues: (a) whether the publication by the defendant of the Declaration of President Elect Instrument, 2004 ~atisfied the defendant's constitutional duty under article 63 (9) of the Constitution without the details specified in the plaintiffs' writ; (b) whether under article 64( 1) any citizen who was aggrieved with the Declaration of President Elect Instrument, 2004 had twentyone days as from the date of that publication within which to present a petition to the Supreme Court in challenge to the Declaration; and (c) whether under article 64(1) the plaintiffs were thereby estopped from challenging the validity of a Presidential Election after the twenty-one days' limitation period.

At the hearing of the application for directions in the trial court, the defendant specifically prayed the court to refer to the Supreme Court for its interpretative opinion under article 130(2), the issues which had been set down by the court for trial. But the trial judge, Ofoe], declined the application for referral until he was certain in his mind "what facts there are to the case" to enable him "formulate the referral accordingly." He also explained that "where there would be a need for referral, it would be determined in the course of the trial."

Consequently, the Electoral Commission, the defendant, brought the instant application in the Supreme Court, in exercise of its superior jurisdiction under article 132 of the Constitution for: (0 an order staying further proceedings of the suit involving the parties pending before Ofoe ]; and (i0 a referral to the Supreme Court for the determination of the issues set down in the said pending action.

At the hearing before the Supreme Court, counsel for the defendant-applicant contended, inter alia, that given the endorsement on the writ and the pleadings, the action by the plaintiffs (the interested parties), was in reality, an election petition cognisable by the Supreme Court under article 64(1) of the Constitution and not th<: High Court. Towards the end of the hearing of the application, namely, after counsel for the applicant had moved the motion and closed his arguments and after counsel for the interested parties had almost concluded his submissions, the same counsel for the interested parties made an oral application to the Supreme Court to "de-couple", ie to abandon reliance on all the constitutional provisions referred to in the original action pending before the trial High Court. The effect of abandoning reliance on the constitutional provisions was to withdraw the relevant pleadings founded on the constitutional provisions which had raised the constitutional issues being the subject-matter of the application for supervisory orders under article 132 of the Constitution. In effect, counsel for the interested parties sought to have the application before the Supreme Court decided solely on the statutory provisions referred to in the original action pending at the High Court, namely, section 2 of the Electoral Commission Act, 1993 (Act 451), the Public Elections Regulations, 1996 (CI 15), and the Presidential Elections (Amendment) Act, 1996 (Act 520).

Held, granting by a four to one majority decision (Atuguba lSC dissenting), the application invoking the supervisory jurisdiction of the Supreme Court under article 132 of the 1992 Constitution for the following reasons:

(1) the Supreme Court's supervisory jurisdiction under article 132 had been properly invoked. The jurisdiction was not limited to the issuing of the traditional or conventional writs of certiorari, mandamus, prohibition, etc. Those orders and directions might be issued in the supreme interest of justice to prevent illegalities and a failure of justice and also ensure fairness and facilitate the expeditious disposal of C2ses. British Airways v Attorney-General [1996-97]SCGLR 547 at 552-553 and 554 arid In re Appenteng (Deed); Republic v High Court, Accra; Ex parte Appenteng [2005-2006] SCGLR 18 at 2324 cited

(2) In an application for judicial review, a plaintiff or an interested party, ie the person who was most likely to be directly affected by the final order of the court, might be permitted to withdraw his or her original action or claim(s) on which the application for judicial review was founded or to which it was related. But leave must first be obtained unless, having regard to the stage of the original action, and more particularly, the review application, the court was not yet dominus litis. Ordinarily, since the grant of leave was not automatic, and might in appropriate cases be refused, the application must be by motion or summons and supported by an affidavit setting out the reasons for the withdrawal. Formal applications would have a clear advantage over oral applications. They would enable the parties to put forward all relevant facts so that the court could exercise its jurisdiction properly. An oral application might, however, be permitted, depending particularly on the stage of the review proceedings. And the trial court had an unfettered judicial discretion in considering the application for leave to amend; hence the application must not be based on ulterior or oblique motives or meant to defeat the ends of justice. It must therefore be brought in good faith. As a general rule, where the court was so firmly dominus litis, ie was possessed of sufficient material on which to judge the merits of the review application, and the opposing party had clearly obtained some advantage of which it would be unjust to deprive him, leave should not be granted, except in exceptional circumstances.

On the peculiar facts of the instant case, the court would refuse the application to withdraw the claims founded on the Constitution, not because it was oral, but because in spite of the rather late stage at which it had been brought, no reason had been assigned for the withdrawal. Again, the application had been made at a most inauspicious stage of the proceedings, ie at a time when the hearing had nearly been concluded. Fox v Star Newspaper & Co [1898] 1 QB 36 cited. Obeng-Manu Jnr v Attorney-General, Supreme Court, Writ No 6/93, 23 May 1995, unreported and Amissab v Attorney-General [2003-2004] 1 SCGLR 156 distinguished.

(3) The trial judge, in the exercise of his discretion, was not bound to comply with the request to refer a constitutional issue to the Supreme Court for determination under article 130(2) of the Constitution. However, the discretion was not limitless, boundless, or was it to be exercised in a petulant fashion. The discretion must be exercised within reasonable bounds, ie it must be exercised judicially, not capriciously or arbitrarily and also in a timely manner, having regard to the nature of the case and the reliefs sought, the issues arising for referral, even more crucially, its expected outcome on the pending action, bearing in mind that all courts had a duty to ensure the efficacious and expeditious disposal of all cases. If at the stage of the referral application, it was plain that, the taking of evidence was not at all necessary, and that the determination of the issues might dispose of the case one way or the other, ie bring the entire hearing or proceedings to an end, then, the taking of evidence for whatever purposes would amount to an improper exercise of discretion. Consequently, whenever there were no disputed facts to be resolved, for either a determination of whether or not a genuine question for interpretation had arisen, or for a formulation of the issues for referral, the referral ought to be made promptly and without any delay. In the instant case, the action pending in the High Court, did not raise any genuine or serious disputed facts. In the circumstances, the trial judge had erred in refusing the request for a referral to the Supreme Court. The reasons given by the trial judge, namely, that he was not ready to make a referral until he had taken more evidence and made more findings of facts, were improper.

(4) The question as to whether on the facts of any given case a real or genuine interpretative issue for referral had arisen for the Supreme Court's opinion, would depend on, inter alia, the nature of the pending action, the reliefs sought and the pleadings. A further criterion was whether or not the action was one which had been neatly clothed as a case involving the exercise of the original jurisdiction of the Supreme Court. In the instant case, at the centre of the whole controversy, lay the disputed interpretation of important constitutional provisions, namely, articles 45, 63 (9) and 64( 1) of the 1992 Constitution; section 2 of the Electoral Commission Act, 1993 (Act 451); and the Public Elections Regulations, 1996 (CI 15). The case was not in substance, an election petition as contended by counsel for the applicant. Consequently, the applicant had made a genuine case which called for the interpretative opinion of the Supreme Court under article 130(2) of the 1992 Constitution. Republic v Special Tribunal; Ex parte Akosah [1980] GLR 592 at 604-605, CA; Edusei v Attorney-General [1996-97] SCGLR 1; Aduamoa II v Adu Twum [2000] SCGLR 165 at 171; and Bimpong-Buta v General Legal Council [20032004] 2 SCGLR 1200 at 1253 cited.

Per Georgina Wood JSC . Another critical factor is whether or not a disputed interpretation lies at the heart of the action. If it does, it qualifies for our intervention. Indeed, it was precisely because of the parties divergent and irreconcilable views on the true meaning of the relevant provisions that in the Akosah case [1980] GLR 592, CA, the court thought that a genuine issue of interpretation had arisen.

Per Atuguba lSC dissenting ... Though constitutional articles, namely, articles 63 (9) and 64 (1), are involved, they are clear and unambiguous and, on established authority, can be applied by the High Court. The application in this case in respect of each article, namely, articles 63 (9) and 64( 1) of the Constitution relates (as stated in Republic v Special Tribunal; Ex parte Akosah [1980] GLR 592 at 605, CA) "to no more than a proper application of the provisions of the Constitution to the facts in issue, this is a matter for the trial court to deal with; and no case for interpretation arises." Therefore, the trial High Court has jurisdiction to determine this case. of Appeal. On 7 October 2002, Mr Zakaria, the registered voter, filed the instant application in the Supreme Court for an order to dismiss the appeal on the ground that the Supreme Court had no jurisdiction to hear and determine the appeal.

Held, granting the application for dismissal of the appeal from the Court of Appeal to the Supreme Court - Sophia Akuffo JSC dissenting: there was no right of further appeal from the Court of Appeal to the Supreme Court in respect of an appeal from an election petition determined by the High Court under article 99 (1) of the Constitution, 1992 because: (0 notwithstanding the general appellate jurisdiction of the Court of Appeal stated in article 137(1) of the Constitution, article 99(2) had expressly provided that a person aggrieved by the determination of an election petition by the High Court under article 99 (1), might appeal to the Court of Appeal. That provision had the effect of taking it, ie such an appeal out of article 13 1 (1) jurisdiction of the Court of Appeal in respect of appeals to the Supreme Court; (ii) when a remedy had been given by the Constitution and a forum had also been given by either the Constitution itself or statute fur ventilating a grievance, it was to that forum that a plaintiff might present his petition. In the instant case, the Constitution had, by article 99 provided only two courts for dealing with election petitions, namely, the High Court and the Court of Appeal. It was the framers of the Constitution, 1992 who, knowing that they were creating a new right chose an appeal procedure whifh ended at the Court of ,Appeal; and (iii) on application of the maxim, generalia specialibus non derogant (general

words do not derogate from special), the special provision set out in article 99 (2), granting the right of appeal to the Court of Appeal from the determination of the High Court for an election petition under article 99 (1), should supersede the general appellate jurisdiction of the Supreme Court under article 131 (1) (a). Yeboah v J H Mensah [1998-99] SCGLR 492 followed.

Per T wum JSC. Admittedly, in a wider sense, it may be said that article 13 1 (1) (a) should give a further right of appeal to the appellant. But ... article 99(1) creates a special remedy and in that remedy, the appeal process ends at the Court of Appeal under article 99(2).

It is quite clear that the framers of the Constitution, 1992 intentionally did that. It cannot be said that when they wrote article 99 in the form we find it in the Constitution, they were oblivious of the general appellate jurisdiction of the Supreme Court. We are fortified in our view by a consideration of article 33, dealing with fundamental human rights remedies. By article 33(3) a further right of appeal is expressly enacted giving the Supreme Court jurisdiction. This gives the clearest indication of the intention of the framers of the Constitution that they deliberately discriminated between appeals against election petitions and fundamental human rights' appeals. In order that the clear intention of the framers of the Constitution may not be aborted, we are convinced that this is a proper case to apply the maxim generalia specialibus non derogant. We hold that the appeal provision in article 99(2) supersedes the general appellate jurisdiction of the Supreme Court under article 13 1 (1) (a).

Per Sophia Akuffo JSC dissenting. Admittedly, this provision, ie article 99(2) makes no mention of a further appeal to the Supreme Court. However, ... given the language of article 131 (1) and (2) and the structure of the Constitution, 1992 there was no need to do so; and the mere fact that no such mention is specifically made in article 99, cannot justify a conclusion that an appeal cannot lie from a decision of the Court of Appeal in such matters.

I am fortified in this view by the fact that, when the Constitution intends to limit the right of appeal to the Court of Appeal alone, it does so specifically, as in article 48 (1) and (2).