LUGUTERAH v. THE INTERIM ELECTORAL COMMISSIONER [1971] 1 GLR 109

DIVISION: IN THE HIGH COURT, ACCRA

DATE: 23 MARCH 1970

BEFORE: KINGSLEY-NYINAH J.

CASE REFERRED TO

Osman v. Tedam, S.C., 25 February 1970, unreported; digested in (1970) C.C. 41.

NATURE OF PROCEEDINGS

APPLICATION for an order of interim injunction restraining the interim electoral commissioner from holding the by-election in the Chiana-Paga constituency on 24 March 1970.

COUNSEL

S. A. Okudzeto for the applicant.

George Aikins, State Attorney, for the respondent.

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JUDGMENT OF KINGSLEY-NYINAH J

This is an application at the instance of the plaintiff, “praying for an order for interim injunction to restrain the defendant, his agents and servants from holding a parliamentary election in the Chiana-Paga constituency pending the hearing and determination of the suit herein.”

In the substantive action upon which this instant motion is based, the plaintiff’s claim against the defendant is for:

“(a) A declaration that he be declared elected member of Parliament for Chiana-Paga constituency.

(b) An injunction against the defendant, from holding an election in the Chiana-Paga Constituency pending the dissolution of Parliament.”

The plaintiff’s action is well founded for, article 76 (1) of the Constitution, 1969, provides that: “76. (1) The High Court of Justice shall have jurisdiction to hear and determine any question whether

(a) any person has been validly elected as member of the National Assembly or the seat of any member has become vacant.”

While the plaintiff’s action now remains pending and unheard, he has very properly filed this instant and restrictive application geared towards the preservation, in statu quo, of a certain state of affairs until a final pronouncement is made as to the rights of the parties to the plaintiff’s suit numbered 135/70. The following is the state of affairs the applicant seeks an order to preserve.

After the last general election of 29 August 1969 won by the applicant’s rival candidate, Mr. C. K. Tedam, the applicant instituted proceedings by way of an election petition before the High Court, Tamale, challenging the results of the said general election (in which he lost) as published in Gazette No. 91, of 19 September 1969. The applicant subsequently amended his petition for a further declaration by the High Court, Tamale, that he be pronounced the winner in the Chiana-Paga constituency in the general election of 29 August 1969, because at the time of that election his opponent, the said Mr. C. K. Tedam, was disqualified under the Political Parties Decree, 1969 (N.L.C.D. 345), para. 17 (as amended by the Political Parties (Amendment) Decree, 1969 (N.L.C.D. 347).

The action before the High Court, Tamale, was held in purposeful abeyance to abide the outcome of another action instituted in the Court of Appeal (sitting as the Supreme Court) by a Mr. Abu Jonas Osman against the very same Mr. C. K. Tedam, the plaintiff, there seeking a declaration that by reason of Mr. C. K. Tedam being disqualified by a law in force at the coming into force of the Constitution of the Second Republic, he was not qualified to be a member of the National Assembly. The relevant article is article 71

(2) (k) which provides that, “No person shall be qualified to be a member of the Assembly who is otherwise

[p.112] of [1971] 1 GLR 109 disqualified by any law in force at the time of the coming into force of this Constitution.” The outcome of that constitutional suit is now history. The plaintiff, Abu Osman, got his declaration and Mr. C. K. Tedam was duly pronounced disqualified and for ever restrained from being a member of the

National Assembly. In the result, Mr. C. K. Tedam now stands restrained from holding himself out as the elected member of Parliament for the Chiana-Paga constituency, and he has no right, now, either to sit in Parliament, or else to take part in any of its proceedings.

As a result of that decision, the interim electoral commissioner, respondent to this application, set in train the necessary machinery for the holding of a fresh election in the Chiana-Paga constituency on Tuesday 24 March 1970. It is this last development, stemming directly from the declaration of the Supreme Court in a constitutional matter, that the applicant herein, by this instant motion, seeks to prohibit. The rival postures assumed by the parties to this application appear from their affidavits which have been expatiated upon by both learned counsel. They are as follows: While the respondent contends that a vacancy has fallen which must be filled by means of a by-election as required by the Constitution, because of the decision of the Supreme Court in the constitutional suit No. 2/70 of 25 January 1970, the applicant contends otherwise and urges that since Mr. Tedam was disqualified, absolutely, before ever he stood for an election which he ought never to have contested in the first place, the applicant’s rightful seat in Parliament, usurped and irregularly occupied, and without qualification by Mr. Tedam, must now be restored to him without recourse to any fresh elections because no such vacancy as envisaged by article 87 (4) of the Constitution, has occurred to make any by-election necessary in the very peculiar circumstances of this case. In other words, the participation of Mr. C. K. Tedam in the general election of 29 August 1969, was utterly void and of no effect. And since the applicant polled, after Mr. Tedam, the next highest number of votes in that regularly held election, therefore, and because Mr. Tedam’s disqualification has been confirmed by the Supreme Court, he (Mr. A. A. Luguterah) “should have been declared by the defendant as the duly elected member of Parliament for Chiana-Paga constituency” (see paragraph (6) of the affidavit in support of the motion).

It becomes pertinent, here, to look at the number of candidates who contested the Chiana-Paga constituency seat at the last general election. Under the heading “Polling Arrangements for the Chiana-Paga Constituency,” occurring on page 868 of Gazette No. 79, of Tuesday, 26 August 1969, the following are listed as candidates for that election:

(i) Clement Kubindiwo Tedam;

(ii) Luguterah Asuchina Agyombura;

(iii) Ateyoro John Edward; and

(iv) Adda Askia Felix.

At the close of nominations, then, on 26 August 1969 there was more than one candidate for the election which was held on the 29 August

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1969. If, therefore, either Mr. C. K. Tedam or any one of the others had been withdrawn from the contest, for any disabling reasons such as worked towards Mr. Tedam’s disqualification, and he, or that person, had consequently not fought the election at all, the contest for the Chiana-Paga seat would have necessarily been a three-cornered one, and the person who subsequently polled the greatest number of votes would have stood duly elected for that constituency. In the peculiar situation then existing, it certainly was not as though at the close of nominations before the last general election, Mr. A. A. Luguterah was the only candidate available.

According to the “Results of the General Elections” published at page 1044 in Gazette No. 91 on Friday 19 September 1969, Mr. Clement Tedam polled 5,343 votes, while the applicant herein scored 4,839 votes,with Messrs. Edward Ateyoro and A. F. Adda chalking up 1,653 and 388 votes respectively.

With regard to these results, let me straightaway correct a misconception on the part of the applicant’s counsel. He has here submitted that the results of the election were “declared” by the respondent as the interim electoral commissioner. That is not correct. The results of the election were avouched not by the respondent, or any person or persons working under him; they were explicitly proclaimed to the whole country by the electorate of the Chiana-Paga constituency. All the respondent did, following the election, was that he notified for general information those results which in effect were the verdict of the people of that electoral district and constituency.

In the course of its judgment in the case of Osman v. Tedam, unreported; digested in (1970) C.C. 41, S.C. the Court of Appeal, sitting as the Supreme Court, made the following pronouncement touching the central issues whether Mr. C. K. Tedam was disqualified by paragraph 17 of the Political Parties Decree, 1969 (N.L.C.D. 345), as amended by the Political Parties (Amendment) Decree, 1969 (N.L.C.D. 347): “The effect of article 71 (2) (k) and Decrees Nos. 345 and 347 is that the defendant has no right to be a member of Parliament.”

In other words, the nomination and subsequent victory of Mr. 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. In my opinion the decision of the Court of Appeal (sitting as the Supreme Court) must necessarily affect the standing of all the other three candidates irrespective of the size of their votes at the last poll. It is my further view that the entire election results of 29 August 1969 for the Chiana-Paga constituency must stand upset. The question for decision here is whether the applicant has put forward an affirmative and convincing case which shows that because he polled the next highest number of votes after the now disqualified Mr. Tedam, he is therefore qualified to be accepted as the next member of Parliament for the Chiana-Paga constituency, without recourse to any fresh election. [p.114] of [1971] 1 GLR 109

The right of every citizen of this country to vote, if duly qualified so to do, is enshrined in our Constitution. Such a citizen is possessed of the single, personal legislative power of exercising his franchise to send to the National Assembly a representative of his own free choice. Where, therefore, a constituency puts forward one successful candidate, he is acknowledged as having the decisive backing and authority of his constituency. The authority which the Chiana-Paga electorate purported to give to Mr. Tedam having been nullified, they cannot be denied their right of investing a proper candidate with their full sovereignty.

The present National Assembly is representative only of 140 constituencies, each having one seat. Let me here refer to article 70 of the Constitution, which stipulates as follows, “The National Assembly shall consist of not less than one hundred and forty and not more than one hundred and fifty elected members.” That number must be maintained so that no constituency in the country is ever at any time, and for any unduly long period, left without proper representation. I refer also to article 87 (4),which abhorring a vacuum in the membership of the Assembly, provides that, “Whenever any other vacancy occurs in the National Assembly a by-election shall be held within thirty days of the vacancy occurring.” Reference must also be made to paragraph 34 (2) of the Representation of the People Decree, 1968 (N.L.C.D. 255), which makes provision for the holding of a fresh election. There is also article 76 (1) (a), which empowers the High Court to hear and determine any question whether, “any person has been validly elected as a member of the National Assembly or the seat of any member has become vacant.” It is clear from all this that whoever takes his seat in our present Parliament must first have been duly elected. An election, in the context of the Constitution, is the unpredictable process whereby a body of people in a constituency, by means of the secret ballot freely choose their own representatives to the National

Assembly. The exercise of this, their elective franchise, must be full, voluntary and unhampered, to clothe the election with acceptable validity. Such an election may be a full-scale and national or general one; or it may be a local or by-election.

Paragraph 44 (1) of the Representation of the People Decree, 1968 (N.L.C.D. 255), defines a by-election as “an election held to fill a vacancy occurring otherwise than on the dissolution of the Assembly.” The only occasion where a member of Parliament can feel safe because the trying and hazardous cup of election is taken away from him is when he stands unopposed. Then, even though he does not face the mysterious ballot box, yet he must nevertheless have filed his nomination papers, and done all that our election laws and regulations demand that he does. I make pertinent reference to article 34 of the Constitution which provides as follows:

“(1) Subject to the provisions of this article, where only one candidate is nominated at the close of nominations on the nomination day preceding a public election there shall be no election and that candidate shall be declared elected.

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(2). Where for the purposes of a public election two or more candidates are nominated but at the close of nominations on the nomination day preceding the election only one candidate stands nominated, a further period of ten days shall be allowed for the nomination of other candidates, and it shall not be lawful for any person so nominated within the said period of ten days to withdraw his nomination. (3). Where at the close of nominations pursuant to the provisions of the immediately preceding clause only one candidate stands nominated there shall be no election and that candidate shall be declared elected.”

That is elected unopposed.

By paragraphs (5) and (6) of the respondent’s affidavit in opposition, he deposed that he believed that Mr. C. K. Tedam having, “ceased to take his seat as a member of the National Assembly as a result of the order of the Court of Appeal … a vacancy has occurred in the National Assembly consequent upon the said order,” and he further deposed that, “pursuant to that order of the Court of Appeal … and in conformity with the provisions of clause (4) of article 87 of the Constitution“ he had duly set in motion the machinery for a by-election, the holding, tomorrow, of which the applicant now seeks to stop. By paragraph (6) of the respondent’s affidavit, it is shown that, “on 5 March 1970, the plaintiff herein filed nomination papers with the returning officer for the Chiana-Paga constituency to stand as a candidate for the election to be held on 24 March 1970.” It is significant to note that the applicant makes admission of this latter fact that he had filed his nomination papers for the by-election scheduled for 24 March 1970. But he contends, through his counsel, that he is perfectly entitled not only to have filed his nomination papers, but also to have instituted the substantive suit and to urge, now and furthermore, that tomorrow’s by-election be stopped. His reason for this is that he filed those papers “under protest,” as it were; and that being fully aware of the threatened violation of his legal rights, he was bound to take these positive steps to restrain any infringement thereof.

It is my considered opinion, founded on the facts disclosed in both affidavits herein, and in the very peculiar circumstances of this case, first, that it is because the applicant readily accepted, and honestly believed in the existence of a vacancy in the seat in Parliament for the Chiana-Paga constituency; secondly, that that vacancy was brought about by the disqualification of his former rival, Mr. C. K. Tedam; thirdly, that he acknowledged the fact that that seat had to be actively contested for and won by the most deserving candidate after an appeal to the electorate; fourthly, that he considered himself qualified to stand, and having the best chance, of the lot, of winning the by-election and fifthly, that he acknowledged the constitutional and legal right of the respondent herein to hold, or cause to be held, the said by-election; and it was in pursuance of all this that, sixthly, he filed his nomination papers on or about 5 March 1970. I hold, therefore, that by that conclusive and irrevocable act, the [p.116] of [1971] 1 GLR 109 applicant herein submitted to the authority of the respondent as by the Constitution established to hold, or cause to be held, the already-scheduled by-election for the Chiana-Paga constituency, tomorrow. In all the circumstances of this matter, I accept the respondent’s contention attacking the good faith of the applicant because enough data is here provided for the necessary inference that even though it does appear that he can and should act timeously to protect his rights, he has not come to court with clean hands. By this instant application, and his substantive suit now pending here in the teeth of that prior and subsisting election petition before the Tamale High Court, the applicant has, in my opinion, executed a dramatic volte-face.

Our courts exist to do substantial justice between parties. They certainly are not meant to gratify the craving of parties who indulge in the utopian luxury of eating their cake and, at the very same time, having it. By this application the plaintiff seeks to have the best of two worlds, to do the mutually exclusive acts of both putting himself forward as a suitable candidate for an election, while at the same time urging that those very elections be not held, but that he be returned, unopposed, thus squashing the fair and open chances available to the other candidates to test their popularity with the electorate. It is my view that this is a complete misconception of the decision and effect of the Supreme Court case of Osman v. Tedam (supra.). As far as I am concerned, the Court of Appeal (sitting as the Supreme Court) by that decision, and the consequential orders made thereafter, never said, nor must they be taken, or erroneously presumed to have intended that of the three candidates left in the race after Mr. C. K. Tedam’s disqualification, the plaintiff-applicant, Mr. A. A. Luguterah, should be crowned victor automatically to take his seat in Parliament without the necessity of a by-election just because his votes were greater in number after those polled by Mr. Tedam.

The mischief inherent in such a narrow and illiberal interpretation of the effect of that decision is thrown into very bold relief when the whole of this matter is looked at dispassionately, and the Osman case construed beneficially. In the very peculiar and rather special circumstances of this matter it becomes imperative not to consider the rights of the applicant in exclusive isolation, but rather to have relevant regard to the effect upon the rights and interests of the other candidates in particular, and those of the Chiana-Paga constituency at large. What will be the ultimate result upon these people, should the applicant’s motion be granted and the interim electoral commissioner duly restrained from holding the by-election? What also will be the result if the application is refused?

It must be remembered that by the Supreme Court decision in the Osman case, Mr. C. K. Tedam never contested any election to have lost it because his disqualification tainted and affected the whole of the election to make it invalid. What then must the electorate of the Chiana-Paga district do? Must they be permitted freely to exercise, again, their elective

[p.117] of [1971] 1 GLR 109 franchise and choose yet another candidate of their very own preference to fill their now vacant seat in Parliament? Or must they accept someone for whom they never cast their majority vote? Will it be right, or just, to foist upon them the person merely because his votes stood next in quantity to that of the now-ousted Tedam? It is my opinion that this latter could be properly done, and the constituency would have no choice in the matter if, as provided by the Constitution, the applicant qualified as an unopposed candidate. But he does not; and not having the good fortune of being at the close of nominations, the only nominated candidate in the previous election, the applicant cannot by any ingenuity stretch the provisions of article 34 set out in extenso above, to cover the peculiar nature of his circumstances here. What the Constitution contemplates is that upon a vacancy occurring in any Assembly seat during the lifetime of this present Parliament, there shall be taken by the proper authority, namely, the respondent herein, the requisite next steps to hold a by-election in the affected constituency when the most successful candidate chosen by the majority of votes in the election, if regularly held, shall then be presented to Parliament as the accredited representative of that constituency.

To hold that the Supreme Court, by its decision in Osman v. Tedam, meant or intended that no by-election be held or that both it, and the Constitution, intended an automatic assumption of a parliamentary seat in such circumstances as are here present, or both, would be to take an extremely misguided and jaundiced view of both the Constitution and the authority of the Supreme Court. Even though the Constitution of the Second Republic has entrusted much more power than ever before to the Supreme Court in particular, and to the High Court in general, it must not be erroneously presumed that this sober, august and ever-vigilant guardian of the rights and liberties of the people will ever attempt to curtail by one jot or tittle, or usurp, either partially or wholly, any part of those rights or liberties they are in solemn duty bound to guard so jealously. More particularly will the right of the people to send to their own Parliament the men and women of their very own free and democratic choice never be tampered with by any court in this realm.

It can never be said, by necessary or even by probable inference, that it was ever within the contemplation of the late Constituent Assembly, as reflected in the pages of our Constitution, to invest the courts, both superior and inferior, with autocratic power to dictate to the people of this country as to whom their representatives in Parliament must be. Both the Constitution, and the courts, defer to the sovereign people of this land as the sole and best qualified judges of whom their representatives shall be. If, therefore, the Constitution never contemplates it, then the courts cannot, either, be presumed to have any power to cause to be forfeited the right of any electorate to choose its candidates as often as a by-election falls to be contested.

The use of the word “shall” in article 87 (4) of the Constitution, is decisive and I interpret that word to be an obligatory imperative which

[p.118] of [1971] 1 GLR 109 leaves the electoral commissioner no discretion, or liberty of choice, as to whether to hold, or not to hold, a by-election within a period of 30 days of a vacancy occurring in the National Assembly. In the circumstances of this instant application I am persuaded by the cogent weight of the facts to hold, finding no fault in the respondent, that his act complained of in paragraph (7) of the applicant’s supporting affidavit, namely, “That the defendant has however issued a writ for a by-election to be held in the Chiana-Paga Constituency on the 24 March 1970,” cannot be impeached, having regard to the fact not only that it was done in purposeful consonance with the strict requirements of the Constitution, but also because no rights, either civil, or legal, or constitutional, have been shown, by the applicant for injunction, to have been invaded by the issue of the said election writ. I have no hesitation whatsoever, therefore, in giving him, the said interim electoral commissioner, respondent herein, full judicial absolution and completely acquitting him of fault.

In this application, nothing of any substance, or at all, has been urged to convince and satisfy me of the existence of any authority which provides for, and therefore entitles the applicant to, an automatic and walk-over membership of the National Assembly following the disqualification either legal, or constitutional, of a previous member thereof.

In the result I must, and I hereby and accordingly do, dismiss this motion for an order restraining the interim electoral commissioner, the respondent herein, from holding the Chiana-Paga by-election tomorrow, Tuesday, 24 March 1970. I have been moved to this decision because attractive though the submissions of learned counsel for the applicant, I have not been sufficiently satisfied, or at all, that it is just, as well as convenient that the plaintiff’s motion should be granted. I refuse this application because I have not been satisfied or convinced as to how the holding of fresh election in the Chiana-Paga electoral district, to fill a vacancy, necessitated by the disqualification of Mr. Clement Tedam, can, or will, work any hardship, prejudice or mischief, substantial or otherwise, to or upon the legal or constitutional rights, of the applicant herein, or else detrimentally affected his liberty herein.

To my mind, therefore, this is not a proper case for the grant of an order for interim injunction because whereas no irreparable damage, or at all, or injury, shall, at all, result to the plaintiff-applicant by the refusal of his motion, overwhelming injustice and hardship will be wrought upon the people of the Chiana-Paga Constituency, if this instant application were granted and the interim electoral commissioner restrained, as sought.

DECISION

Application refused.

N.A.Y