CHAPTER 3

PRESIDENTIAL DISPUTES

In the case of a challenge to Presidential Election, the Constitution provides that the declaration of the Presidential election may Be challenged by a petition presented to the Supreme Court.

1 The Constitution further stipulates that the Rules of Court Committee shall make rules for the practice and procedure for petitions to the Supreme Court challenging the election of a President.

2 The Rules of Court Committee have accordingly made rules of procedure as to what constitutes a petition 50 far as challenges to Presidential Elections by a petition are concerned.

The Supreme Court Rules, 1996 (C 1 16), rr 68 and 69 clearly state what should be contained in a petition and its answer filed pursuant to article 64(3) of the 1992 Constitution.

These provisions stipulate as follows:

A petition presented pursuant to clause (1) of article 64 of the Constitution shall state

            (a)       the full name and address of the petitioner and of his Counsel, if any which shall be an address for service;

            (b)       the grounds for challenging the validity of the election;

            (c)       a statement of the facts relied on to be verified by affidavit, and of the law in support of the petition;

            (d)       the number of witnesses to be called, if any; and

            (e)       such other matters as the Court may determine.

The petition shall be filed with the Registrar of the Supreme Court.

On the other hand, the Rules also provide that the Attorney General and any other person upon whom a petition is served may file with the Registrar, within 21 days of the service, an answer to the petition which shall state the following:

            (a)       the grounds of opposition to the petition;

            (b)       the facts relied upon, verified by affidavit;

            (c)        the law in support of the answer in 'opposition to the petition; and

            (d)       the number of witnesses to be called, if any.

The answer to the petition shall be filed with the Registrar.

PARLIAMENTARY DISPUTES

Article 99(1) 1992 of the Constitution confers jurisdiction on the High Court to hear· and determine any question concerning whether a person has been validly elected as a member of Parliament or the seat of a member has become vacant.

What this means is that all jurisdiction in respect of any complaint or dispute touching the election of any person as a Member of Parliament as constituted under the Constitution 1992 has been conferred on the HIGH COURT. The High Court is therefore the commencement point of any election dispute so far as the election of a member of Parliament is concerned.

This point was emphasised by the Supreme Court in the case of Yeboah v Mensah [1998-99] SCGLR 492, at 493 & 494. The

Constitutional provision in Article 99(1) of the 1992 Constitution has been re-emphasised by the provisions of the Representation of the People Law, 1992 (PNDCL 284) as amended:

Section 16 (1) and (2) ·of PNDCL 284 as amended states as follows:

16 (1) The validity of an election to Parliament may be  questioned only by a petition brought under sections 17 to 26.

                     (2)        An election. petition shall be presented before the High Court for hearing.

 

APPELLATE JURISDICTION IN RELATION TO PARLIAMENTARY DISPUTES

1. Article 99 (2) of the Constitution 1992 provides as follows:

A person aggrieved by the determination of the High Court under this article may appeal to the Court of Appeal.

In this instant, it should be noted that it is provided in Article 13 1 (1) (a) of the Constitution 1992 as follows:

An appeal shall lie from judgment of the Court of Appeal to the Supreme Court -

(a) as of right in a civil or criminal cause or matter in respect of which an appeal has been brought to the Court of Appeal from a judgment of the High Court or Regional Tribunal in the exercise of its original jurisdiction.

However, the Supreme Court in its decision in the case of In re Parliamentary Election for Wulensi Constituency; Zakaria v Nyimakan [2003-2004] 1 SCGLR 1 held by a four to one majority decision as follows:

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 (I) notwithstanding the general appellate jurisdiction of the Court of Appeal stated in article 13 7( 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 131 (1) jurisdiction of the Court of Appeal in respect of appeals to the Supreme Court.

The Supreme Court should therefore be deemed as having firmly decided that there is only one right of appeal from the High Court to the Court of Appeal.

ELECTORAL DISPUTE RAISING ISSUES OF INTERPRETATION OR ENFORCEMENT OF THE 1992 CONSTITUTION

 It should be stressed that under article 130 (1) (a) of the 1992 Constitution, all matters relating to the enforcement or interpretation of the Constitution should be exclusively determined by the Supreme Court. Consequently, whenever in determining a dispute relating to parliamentary election, the High Court finds that an issue of the enforcement or interpretation of the Constitution arises, the High Court must, under article 130(2) of the Constitution, stay proceedings and refer the constitutional issue to the Supreme Court for determination.

   On the crucial question of the timing for making referrals to the High Court, attention should be drawn to the decision of the Supreme Court in the case of Republic v High Court (Fast Track Division), Accra; Ex parte Electoral Commission (Mettle-Nunoo & Others Interested Parties) [2005-2006] SCGLR 514. The Supreme Court in this case held (per Georgina Wood JSC (as she then was) at page 539 that:

& whenever there are no dispute facts to be resolved, for either a determination of whether or not a genuine question for interpretation has arisen, or for a formulation of the issues for referral, it [the referral] ought to be made without delay.

Indeed, in the Mettle-Nunoo case, the Supreme Court held that 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. And in the recent case of Republic v Fast Track High Court, Accra; Ex parte CHRAJ (Richard Anane Interested Party) [2007-2008] SCGLR 213, the Supreme Court (per Georgina WoodJSC (as she then was) at page 235 affirmed the observation of Prof Ocan JSC in the Mettle-Nunoo case (as stated at page 559) that; the trial court should not presume that there is no issue of interpretation; it will be a safer course of action for the trial court to refer the matter to the Supreme Court rather than to assume there is no real issue of interpretation, or that his or her view of the constitutional provision is more likely to be correct than that of five or seven Supreme Court Justices put together.