CHAPTER 5

PRESIDENTIAL ELECTIONS

In the case of a challenge to Presidential Election, the Constitution 1992 provides that the declaration of the Presidential election may be challenged by a petition presented to the Supreme Court. I

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 has accordingly made rules of procedure as to what constitutes a petition so far as challenges to Presidential Elections by a petition are concerned.

The Supreme Court Rules, 1996 (C 1 16), r 683 clearly states what should be contained in a Petition and its answer filed pursuant to Article 64 (1) of the Constitution 1992.

The said rule 68 stipulates 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 for the petitioner 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; and

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

The petition shall be filed with the Registrar.

Rule 69 of CI 16 also provides 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 law in support of the answer in opposition to the petition; and

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

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

PARLIAMENTARY ELECTIONS

Even though article 99 (1) (a) of the Constitution 1992 has clothed the High Court with jurisdiction to determine election disputes in respect of members of Parliament, the Constitution did not specify the procedure to do so has not been stated. However, the Representation of the People Act, 1992 (PNDCL 284), as amended makes some provisions on how these disputes are to be handled by the High Court.⁵

By the provisions of that Law, election disputes to question the validity of an election of a person to Parliament may be questioned only by a petition pursuant to sections 17 to 26 of that Law. The Law also by its section 26 provides that the rules of procedure applicable in the High Court in the presentation and hearing of civil causes or matters shall be applicable in respect of election petitions in the High Court.⁶

What should an election petition contain?

The Rules of Civil Procedure currently in use before the High Court are silent on what a Petition should contain. 7

Under the circumstances, we have to look to decided case Law for guidance. The Court of Appeal held in Civil Appeal No. 10/2001, . dated 11th April, 2002 entitled:

In The Matter of Article 99 of the Constitution of Ghana and

In the Matter of the Representation of the People Law, 1992 (PNDCL 284)and

In the Matter of a Parliamentary Election for Wulensi Constituency on 7th December, 2000, as follows: 8

There are various methods of initiating proceedings in our courts. A petition, separate and distinct from the well known method of beginning proceedings by a writ of summons is one of them. It being the method sanctioned by Law for questioning the validity of Parliamentary elections, the Law would look to that method alone.

After reviewing the necessary legislation and legal authorities like Atkins Court Forms and Odgers on Pleadings, Georgina Wood  J A (as she then was) who delivered the opinion of the court concluded this issue of what the contents of a petition should be in these terms:

A written document, presented to the court, praying that a particular order be made. Its form is not prescribed. It is addressed to the court and not to the other party; it includes a concise statement of the nature of the claim made or the relief or remedy required in the proceedings, which it begins, but it is not a pleading&

No form of petition is prescribed by the Rules of the Supreme Court but the general form is well settled It must be entitled In the matter of the company, patent or other matter, or the person, to which the order sought relates and of the Act of Parliament conferring jurisdiction on the court to entertain the petition.

From the above judgment, it could or may be stated that, as a guide, an election petition should contain the following particulars at the minimum:

     1.      Name and address of the petitioner and his or her counsel (if any) and which shall be the address for service.

      2.      Name and address of the respondent and his or her counsel (if any) which shall be the address for service.

3.     The petition must be in writing and signed by the petitioner and or his counsel.

4.     The petition must be addressed to either the High Court or the Supreme Court, ie where the action is be commenced.

5.      It must contain a statement of the nature of the claim, the nature and extent of the reliefs being sought and the grounds upon which the reliefs or remedies are being sought.

6.      It must contain a statement of the facts relied on to be verified by an affidavit and the law in support of the petition.

7. The number of witnesses to be called, if any.

          8.      It must be properly headed (or example):

In the Matter of Article 99 of the Constitution 1992 and

In the Matter of the Representation of the People Act, 1992 (PNDCL 284) as amended and

In the Matter of Parliamentary Election for (Kojokrom) Constituency etc etc.

Care should be taken to ensure that fetish is not made out of or non-use of use of prescribed forms. What is important is that, the court has sufficient information or guidelines in the manner stated (supra). If these are present, then a court must proceed to hear the petition. This is because a court must look at the substance rather than the form and ensure that substantial justice is done to all, especially when all the parties to the petition have been notified. It is often said that equity looks at the substance rather than the form. In the particular case of an election petition, the court must bear in mind that the issue to be determined, in essence, is about the elected representative of the people in the particular constituency. Such an enquiry should not be unduly submerged under matters of form.

The Answer to the Petition

In petitions in respect of both Presidential and Parliamentary Elections, the form of the Answer must follow closely that of the petition. The only difference is that while the paragraphs of the petition would contain matters including the relevant law in support of it, the answer responds to or is opposition to the petition.