NATIONAL DEMOCRATIC CONGRESS vs. ELECTORAL COMMISSION [2001-2002] 2 GLR 340

CASES REFERRED TO

(1) Mensima v Attorney-General [1996-97] SCGLR 676.

(2) Mosi v Bagyina [1963] 1 GLR 337, SC.

(3) Afuah v Sarbah [1974] 1 GLR 147.

(4) Yeboah v Mensah [1998-99] SCGLR 492.

(5) New Patriotic Party v National Democratic Congress [2000] SCGLR 461.

(6) New Patriotic Party v Electoral Commission [1993-94] 1 GLR 124, SC.

(7) New Patriotic Party v Rawlings [1993-94] 2 GLR 193, SC.

(8) Majolagbe v Larbi [1959] GLR 190.

(9) Kwakye v Attorney-General [1981] GLR 9, SC.

(10) Republic v Director of Prisons; Ex parte Shackleford [1981] GLR 554 [p.343] of [2001-2002] 2 GLR 340 (11) Ekwam v Pianim (No 2) [1996-97] SCGLR 120.

(12) Yiadom I v Amaniampong [1981] GLR 3, SC.

(13) New Patriotic Party v Attorney-General [1993-94] 2 GLR 35, SC.

(14) Bilson v Apaloo [1981] GLR 24, SC.

(15) Republic v High Court, Accra; Ex parte Adjei [1984-86] 2 GLR 511, SC.

(16) Awoonor-Williams v Gbedemah, Supreme Court, 8 December 1969, unreported; digested in (1970)

CC 18; (1969) 2 G & G 438.

ACTION by the plaintiff political party invoking the original jurisdiction of the Supreme Court under article 2 of the Constitution, 1992 for a declaration, inter alia, that the notice issued by the defendant Electoral Commission to conduct an election on 20 March 2001 for regional representatives to the Council of State was an act which was inconsistent with or in contravention of articles 89(2)(c) and 242(c) and (d) of the Constitution, 1992 and therefore null and void. The facts are sufficiently stated in the judgments of Acquah and Adzoe JJSC.

Kwaku Baah for the plaintiff.

Johnny B Quashie-Idun (with him Adumuah-Osei and E O Amoah) for the defendant.

Edward Wiredu AG CJ. By its writ, the plaintiff, the National Democratic Congress, seeks against the defendant, the Electoral Commission of Ghana the following reliefs:

“(1) a declaration that the notice issued by the defendant to conduct on 20 March 2001, the election of regional representatives to the Council of State ‘is an act which is inconsistent with or in contravention of the provisions of articles 89(2)(c) and 242(c) and (d) of the Constitution’ and therefore null and void;

(2) an order of perpetual injunction restraining the defendant, its servants and agents, from conducting the said election on the said date or any other date; and (3) an order restraining the defendant from conducting the

[p.344] of [2001-2002] 2 GLR 340 said elections until the determination of this suit.”

Since by this action, the plaintiff seeks to invoke the original jurisdiction of this court under article 2(1)(b) of the Constitution, 1992, the fundamental question that comes to mind is whether or not the action is one congnisable by the article. The provisions of article 2(1)(b) of the Constitution, 1992 are by now pretty well known, however, for ease of reference I set it out as follows:

“2. 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.”

What then is the plaintiff’s complaint or allegation against the defendant? By the nature of the main relief, ie the declaration sought by the plaintiff, and from its statement of case, the allegation is that the defendant’s notice to conduct the elections constitutes an act, which is inconsistent with or in contravention of articles 89(2)(c) and 242 of the Constitution, 1992.

Now, article 89 of the Constitution, 1992 spells out the composition of the Council of State and in sub-clause (2)(c) includes:

“(c) One representative from each region of Ghana elected, in accordance with regulations made by the Electoral Commission under article 51 of this Constitution, by an electoral college comprising two representatives from each of the districts in the region nominated by the District Assemblies in the region.”

Article 242 of the Constitution, 1992, which sets out the composition of a district assembly, states that a district assembly shall consist of:

“(a) one person from each local government electoral area within the district elected by universal adult suffrage;

(b) the member or members of Parliament from the constituencies that fall within the area of authority of the District Assembly as members without the right to vote;

(c) the District Chief Executive of the district; and (d) other members not being more than thirty per cent of all

[p.345] of [2001-2002] 2 GLR 340 the members of the District Assembly, appointed by the President in consultation with the traditional authorities and other interest groups in the district.”

I am, therefore, at a total loss to discern from the plaintiff’s writ and statement of case the manner in which the mere act of the defendant in issuing the notice can constitute a contravention of these provisions of the Constitution, 1992 or the spirit thereof. Where an act or omission of any person is challenged under article 2 of the Constitution, 1992, such act or omission must be shown to have taken place, and it must be shown that such act or omission falls foul of a specific provision of the Constitution, 1992, or, at the very least, the spirit of an actual provision. Thus, in an action such as the plaintiff’s for the kind of declaration being sought, simply making reference to an enabling constitutional provision such as article 89(2)(c) cannot suffice. Nor can the mere mention of article 242 avail the plaintiff since there is no perceptible manner in which the issuing of the notice by the defendant can amount to a contravention of the provisions of that article.

What is quite clear is that the plaintiff’s allegation is founded on the Election (Regional Representatives on Council of State) Instrument, 1993 (CI 1), the procedural regulations made by the defendant under article 51 of the Constitution, 1992 pursuant to article 89(2)(c) of the Constitution, 1992, and by extension, the Public Elections Regulations, 1996 (CI 15). Thus, assuming the defendant, by issuing the notice of election has committed any breach at all, it is to CI 1, and CI 15 that we must look, and if there is any such breach, then it is a breach of a legislation and there are other processes available to the plaintiff for redress; an action under article 2(1)(b) of the Constitution, 1992 is not one of such processes.

Consequently, I am minded to dismiss the action upon the basic ground that it is not one properly founded on article 2(1)(b) of the Constitution, 1992 and as such this court has no jurisdiction to entertain the plaintiff’s action.

Bamford-Addo JSC. I agree.

Ampiah JSC. By its writ, the plaintiff seeks:

[p.346] of [2001-2002] 2 GLR 340

“(1) A declaration that the defendant’s notice to conduct the elections of regional representatives to the Council of State on 20 March 2001 is an act of the defendant which is inconsistent with or not in keeping with or is in contravention of articles 89(2)(c) and 242(c) and (d) of the Constitution, 1992 of the Republic of Ghana and therefore null and void.

(2) An order of perpetual injunction restraining the defendant by itself, its servants and agents from conducting the said elections on 20 March 2001 or any other date.

(3) An order restraining the defendant by itself, its servants and agents from conducting the said elections until the determination of the said suit.

(4) Any other directives as to give effect or enable effect to be given to the declaration herein sought.”

The writ is brought under article 2(1)(b) of the Constitution, 1992. The defendant resists the plaintiff’s claim and contends that the whole action is “misconceived, ill-motivated and mischievous.”

In its statement of case the plaintiff alleges that:

“(3) The defendant on or about 15 February 2001 caused a notice to be published in which a certain number of persons drawn from the ten regions of Ghana were declared as standing nominated as candidates for elections as regional representatives to the Council of State.

(4) In the same notice as mentioned in the immediately preceding paragraph the defendant through its deputy chairman (ops) further gave notice that the poll will be taken at all the regional capitals throughout the country on Tuesday, 20 March 2001 between the hours of 7.00 o’clock in the morning and 5.00 o’clock in the evening.

(10) … by letters written under the hand of the Minister of Local Government and Rural Development all district chief executives throughout the country have been dismissed.

(11) . . . Further by letters written by the various regional ministers in their respective regions all persons appointed [p.347] of [2001-2002] 2 GLR 340 by the former government in accordance with section 6(d) who otherwise had a four-year tenure of office have been removed from office.”

The defendant refutes these allegations and states that:

“(2) … it issued an announcement in accordance with article 89(2)(c) of the Constitution, 1992 of Ghana, informing the public that the election of the regional representatives to the Council of State was to be held on Tuesday, 27 February 2001. The qualifications of the regional representatives to the Council of State were indicated in the announcement which also stated that nomination of candidates was to be held on 14 and 15 February 2001 at the regional offices of the commission.

(3) … and the defendant avers that on 20 February 2001, it issued a press statement in accordance with regulation 10 of the Election (Regional Representatives on Council of State) Instrument, 1993 (CI 1) and regulation 14(1) of the Public Elections Regulations, 1996 (CI 15) stating that the election of regional representatives to the Council of State had been postponed from Tuesday, 27 February 2001 to Tuesday, 20 March 2001.

(8) … and contends that the presiding member of any district assembly is authorised to convene a meeting of the meeting of the assembly and further that the quorum for a meeting for an assembly is one-third (1/3) of the members thereof.”

The defendant therefore specifically denies that the district assemblies were not properly constituted as at the date of the filing of the plaintiff’s writ. In any event, the defendant says that they would have refrained from supervising any election, if on the particular date they found a regional electoral college not properly constituted.

Before going into the merits or otherwise of this action, I must first express my dismay at the unsatisfactory manner in which the case has been presented to us. Article 2(1)(b) of the Constitution, 1992 provides that:

[p.348] of [2001-2002] 2 GLR 340

“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, article 3(4) of the Constitution, 1992 enjoins all citizens of Ghana “to defend this Constitution . . .” If therefore we desire to live under a democratic constitutional rule, it behoves each and every one of us to adhere strictly to this injunction. To allege that a person has breached a constitutional provision requires the production of sufficient, cogent and clear evidence to support the allegation. Unfortunately what we have before us from both sides cannot be said to be sufficient, clear and cogent. In the statement of case for the plaintiff, it alleges that certain letters were written. These letters were the source of its allegation. Yet, these letters were not produced before us. No dates were given of these letters and they were not even mentioned as some of the documents relied on. The defendant on its part referred to notices for the conduct of the elections, dates for such elections and the list of persons nominated for the electoral college elections. Yet, these notices were neither produced before us, nor were they referred to in the list of documents relied on. Of course, generally, the plaintiff who seeks the declaration or claim and who must succeed on the strength of his own case and not on the weakness of the defendant, must fail in such a situation. In such paucity of evidence as has been presented to us, the court is being called upon to determine the issues in the case.

On the face of the writ, however, I would not say this court has no jurisdiction to hear the matter. The issue of jurisdiction was not raised by either party. A court of law, however, has a duty to first satisfy itself whether or not it has jurisdiction before it embarks on the determination of the merits of the case. As I have said before in some of my previous opinions in some of the cases brought before this court, an allegation that a person has acted inconsistently with or in contravention of a provision of the Constitution, 1992 raises a triable issue which the court has jurisdiction to determine. No one raised objection to capacity to sue or to be sued. Whether it was the district assemblies which have acted wrongly or not, the publication of the notices by the defendant is an act which flies in the face of

[p.349] of [2001-2002] 2 GLR 340 constitutional provision. The publication to conduct the elections presupposes that the district assemblies have constitutionally constituted the electoral college: if they had not, and since the elections, save in special circumstances, are to be held in all the regions at the same date and time, the statement that “. . . the defendants would have refrained from supervising any elections”, begs the question.

But as stated before in this my opinion, I do not find sufficient evidence to support the allegations made. This court is not entitled to speculate. Neither is it its duty to find evidence for the parties. For lack of supportive evidence therefore I would dismiss the action.

Adjabeng JSC. I have had the privilege of reading the opinion of the president of the court, Edward Wiredu Ag CJ, and I agree with him that we do not have jurisdiction to entertain the plaintiff’s action. I think that the action is misconceived and it ought to be dismissed.

Acquah JSC. My Lords, on 15 February 2001 the Electoral Commission published a notice for the election of regional representatives to the Council of State. Paragraph (3) of the plaintiff’s statement of case further states that the said notice listed a number of persons from the ten regions, nominated as candidates for this election.

Now, an election of a representative, according to the Election (Regional Representatives on Council of State) Instrument, 1993 (CI 1), is done by a regional electoral college composed of two representatives from each of the district assemblies in that region. The National Democratic Congress taking the view that the district assemblies in existence at the time the notice was given, were not properly constituted to submit two representatives each for such a regional electoral college, filed the instant suit in this court, for:

“(1) A declaration that the defendant’s notice to conduct the elections of regional representatives to the Council of State on 20 March 2001 is an act of the defendant which is inconsistent with or not in keeping with or is in contravention of article 89(2)(c) and 242(c) and (d) of the Constitution, 1992 of the Republic of Ghana and therefore null and void.

(2) An order of perpetual injunction restraining the defendant

[p.350] of [2001-2002] 2 GLR 340 by itself, its servants and agents from conducting the said elections on 20 March 2001 or any other date . . .

(3) An order restraining the defendant by itself, its servants and agents from conducting the said elections until the determination of the suit herein.

(4) Any other directive as to give effect or enable effect to be given to the declaration herein sought.”

In an accompanying statement of claim, the National Democratic Congress contends that district assemblies can only elect their two representatives to form the regional electoral college: “if and only when they are properly constituted which they are not at the present.” As to why the district assemblies, in the National Democratic Congress’s view, are not properly constituted, they plead in paragraphs (9) to (13) of their statement of case, thus:

“(9) By article 242(c) and (d) of the Constitution, 1992 and section 5(1) of the Local Government Act,

1993 (Act 462), a district assembly shall consist, inter alia, of the following members:

(a) the district chief executive; and (b) other persons not exceeding 30 per cent of the total membership of the assembly appointed by the President in consultation with traditional authorities and other interest groups in the district.

(10) The plaintiff says by letters written under the hand of the Minister of Local Government and Rural

Development all district chief executives throughout the country have been dismissed.

(11) Further, by letters written by the various regional ministers in their respective regions all persons appointed by the former government in accordance with section 5(1)(d) of Act 462 who otherwise had a four year tenure of office have been removed from office.

(12) In the result, there are no district assemblies constituted within the meaning of article 242 of the Constitution, 1992 and section 5(1) of Act 462 capable of performing any of the functions conferred on district assemblies by

[p.351] of [2001-2002] 2 GLR 340 the Constitution, 1992; Act 462 or any other law for the time being in force.

(13) Consequently, the plaintiff states and contends that currently there are no district assemblies lawfully constituted to elect two representatives to form the regional electoral colleges for the purposes of electing the regional representatives to the Council of State as contemplated by the defendant in the notice herein above mentioned.”

In their defence, the Electoral Commission, though denied paragraph (3) of the National Democratic Congress’s statement of case on the publication of the notice for the regional elections, the fact that the commission issued the said notice was not denied. This is how the commission pleaded this matter in paragraph (2) of its statement of case:

“(2) The defendant denies paragraph (3) of the plaintiff’s statement of case and states that on 9 February 2001, it issued an announcement in accordance with article 89(2)(c) of the Constitution, 1992 of Ghana, informing the public that the election of the regional representatives to the Council of State was to be held on Tuesday, 27 February 2001.”

The commission therefore does not deny that it issued the said announcement. On the alleged improper constitution of the district assemblies, the commission responds in paragraphs (5) to (8) of its statement of case thus:

“(5) The defendant denies paragraph (8) of the plaintiff’s statement of case and specifically denies that the district assemblies were not properly constituted at the date of the filing of the plaintiff’s writ. In any event, the defendant would have refrained from supervising any elections, if on the particular date they found a regional electoral college not properly constituted.

(6) Paragraph (9) of the plaintiff’s statement of case is admitted and the defendant avers that the full complement of the composition of the district assembly includes:

[p.352] of [2001-2002] 2 GLR 340

(a) one elected person from each electoral area within the district, and (b) the member or members of Parliament from the constituencies falling within the area of authority of the district assembly.

(7) The defendant denies paragraphs (10) and (11) of the plaintiff’s statement of case, and avers that none of the alleged correspondence was addressed to the defendant.

(8) The defendant denies paragraphs (12) and (13) of the plaintiff’s statement of case, and contends that the presiding member of any district assembly is authorised to convene a meeting of the assembly, and further that the quorum for a meeting for an assembly is 1/3 of the members thereof.”

Thereafter the commission proceeded in paragraphs (9) and (10) as follows:

“(9) The defendant in any event will contend that the reliefs sought by the plaintiff by this writ are misconceived, ill-motivated and mischievous.

(10) Save and except as is hereinbefore expressly admitted the defendant denies each and every allegation of fact contained in the plaintiff’s statement of case as if same were set out in extenso and traversed seriatim.”

Now, it is clear that what the National Democratic Congress complains about is the competence of the district assemblies to nominate their representatives to form the regional electoral college, at a time when, as pleaded in paragraphs (10) and (11) of the National Democratic Congress’s statement of case, the district chief executives and the government nominees have been withdrawn by letters from the Minister of Local Government and the regional ministers. The defendant specifically denies knowledge of these letters in paragraph (7) of its statement of case thus: “(7). The defendant denies paragraphs (10) and (11) of the plaintiff’s statement of case, and avers that none of the alleged correspondence was addressed to the defendant.”

The National Democratic Congress did not in its statement of case supply any particulars, nor copies of the alleged letters, neither did it

[p.353] of [2001-2002] 2 GLR 340 attempt to produce any other evidence in proof of the existence of these letters, in the face of the defendant’s denial. The substratum of the National Democratic Congress’s complaint therefore remains a mere allegation unsupported by any evidence necessary to prove its validity. For as noted in Mensima v Attorney-General [1996-97] SCGLR 676 at 719 per Acquah JSC:

“The requirement for proof of an allegation in a trial applies to all branches of legal suits, including that of constitutional law litigation. . . The standard of proof is the civil standard of a preponderance of probabilities, which must be vigorously applied.”

Not surprisingly therefore rule 46(2) of the Supreme Court Rules, 1996 (CI 16) governing a plaintiff’s statement of case in an action, like the instant one, to invoke our original jurisdiction requires:

“46. (2) The statement of the plaintiff’s case shall state—

(a) the facts and particulars, documentary or otherwise, verified by an affidavit, upon which the plaintiff seeks to rely;

(b) the number of witnesses to be called, if any; and (c) a list of the decided cases and of the statute law on which the plaintiff intends to rely.”

(The emphasis is mine.) Rule 48(2) of CI 16 demands the same requirements as those set out above in the statement of case of a defendant who decides to contest the plaintiff’s action. The obvious purpose of the above provisions is to ensure that both parties to the suit are given the opportunity to adduce sufficient evidence in proof of whatever allegation necessary for the determination of the action. Failure by the National Democratic Congress to furnish the relevant particulars, documentary or otherwise in proof of its allegation of the withdrawal of the district chief executives and the government nominees, is sufficient to entitle this court to dismiss the action.

But this notwithstanding, it is clear that both parties are of the view that issues worthy of adjudication are raised by their pleadings. Thus, the memorandum of issues set down for determination by the plaintiff are:

[p.354] of [2001-2002] 2 GLR 340

“(1) Whether or not with regard to paragraphs (8) and (12) of the plaintiff’s statement of case, the district assemblies at the date of the filing of the writ herein could transact business and elect representatives to the electoral college.

(2) Whether or not a district assembly at the date of the filing of this writ could transact business with a quorum of one-third of its membership.

(3) Whether or not this action is maintainable, having regard to the fact that a district assembly could conduct business and perform all its functions with a quorum of one-third of its membership.”

While those set down by the National Democratic Congress on the other hand, are:

“(1) Whether or not as at the time of instituting this action the district assemblies were properly constituted according to law.

(2) Whether or not a district assembly ought to be constituted according to law as a corporate body before its quorum may be determined.

(3) Whether or not without the district chief executives or the government appointees a district assembly can be said to be properly constituted.”

The central issue running though all these six issues is whether or not a district assembly can properly be constituted to perform its duties under the Constitution, 1992 or any law without district chief executives and government appointees. The plaintiff says no, while the defendant contends that once the assembly has the requisite quorum, it is competent to perform its functions.

To begin with, it is important to distinguish between the proper constitution of a body necessary to bring that body into existence and the quorum required for that body to conduct a lawful meeting and take decisions. The body must first and foremost be created or properly constituted as stipulated in the enactment before the issue of a quorum can arise. Thus, for example, article 128(1) of the Constitution, 1992 provides that the Supreme Court shall consist of the Chief Justice and not less than nine other justices of the Supreme Court. Compliance

[p.355] of [2001-2002] 2 GLR 340 with this provision brings into being a Supreme Court. But as to the required quorum for the Supreme Court to perform its judicial function, article 128(2) of the Constitution, 1992 provides for at least five justices for its normal jurisdiction and article 133(2) of the Constitution, 1992 provides for at least seven justices in the exercise of its review jurisdiction. A quorum, therefore, as defined by Blacks Law Dictionary (6th ed), is the number of members who must be present in a deliberative body before business may be transacted. I therefore agree with the contention of the plaintiff that the district assemblies must first be properly constituted before the question of quorum can arise.

When then are the district assemblies properly constituted? Now, article 242 of the Constitution, 1992 provides that a district assembly shall consist of:

“(a) one person from each local government electoral area within the district elected by universal adult suffrage;

(b) the member or members of Parliament from the constituencies that fall within the area of authority of the District Assembly as members without the right to vote;

(c) the District Chief Executive of the district; and (d) other members not being more than thirty per cent of all the members of the District Assembly, appointed by the President in consultation with the traditional authorities and other interest groups in the district.”

But then article 243(1) of the Constitution, 1992 provides:

“243. (1) There shall be a District Chief Executive for every district who shall be appointed by the President with the prior approval of not less than two-thirds majority of members of the Assembly present and voting at the meeting.”

Now, if article 242 of the Constitution, 1992 lists out four groups of persons as constituting the district assembly, and article 243(1) of the Constitution, 1992 requires that the qualification of one of these four groups requires a vote of two-thirds majority of the same district assembly then the district assembly as constituted to vote for the approval of the district chief executive cannot include the same district

[p.356] of [2001-2002] 2 GLR 340 chief executive. Indeed, of the four groups listed in article 242 of the Constitution, 1992, the parliamentarians have no votes. Thus, the only groups competent to vote for approval under article 243(1) of the Constitution, 1992 are those elected from the electoral area and the 30 per cent government appointees. These two groups constitute the core membership of the district assembly. And because they constitute the core membership of the district assembly, section 3(2) of Act 462 provides that an instrument establishing a new district assembly should specify in terms of membership of that new assembly: “the number of persons to be elected to the Assembly and the number of persons to be appointed to the assembly by the President.” The number of parliamentarians and the district chief executives are not part of the core membership, but properly speaking, members by virtue of their positions. For the parliamentarians are members by virtue of the fact that they are parliamentarians for the constituencies in that district.

Similarly the district chief executive by virtue of the fact that he has been nominated by the President as the chief representative of the government in the district and approved by two-thirds majority of the core membership of the assembly, is also made a member of the district assembly. And as the chief representative of the central government in the district, article 243(2) of the Constitution, 1992, and section 20(2) and (3) of Act 462 make him:

“(a) the chairman of the executive committee of the district assembly;

(b) responsible for the day-to-day performance of the executive and administrative functions of the assembly; and facts (c) responsible for the supervision of the departments of the assembly.”

Thus, although the district chief executive is made a member of the district assembly, he is not a member whose absence (caused either by vacancy or physical absence) incapacitates or results in the dissolution of the district assemblies. For although he is the chairman of the executive committee and duty bound to preside at the meetings of the said committee, section 20(3)(a) of Act 462 provides that: “. . . in his absence a member of the Executive Committee elected by the members present from among themselves shall preside.”

[p.357] of [2001-2002] 2 GLR 340

Again, although the district chief executive is a member of the assembly and has the same tenure of four years as the assembly, his tenure is not coterminous with that of the assembly, but that his tenure is personal to him, and calculated from the time of his appointment. Thus Order 15, rr 2 and 5 of the Model Standing Orders for District Assemblies, provide:

“15 (2) . . . a District Chief Executive shall hold office for four (4) years and shall be eligible for appointment for another consecutive period of four years only . . .

(5) where a vacancy occurs as a result of a vote of no confidence passed against the District Chief Executive, his removal or resignation under Standing Order No 17, 18 or 19 of these Orders, or his Death, the person appointed to fill the vacancy may hold office for a full four (4) years term and shall be eligible for appointment for another consecutive period of four (4) years only.”

(The emphasis is mine.)

It cannot therefore be said that the absence of a district chief executive incapacitates a district assembly from performing any function assigned to it under the Constitution, 1992; Act 462 or any other law.

But the same cannot be said of the 30 per cent government appointees who are part of the core membership of a district assembly as specified in the instrument establishing a district assembly. The government appointees together with the elected representatives constitute the core representatives of the assemblies, who have to vote to approve the nomination of a district chief executive. The absence of either of the two renders the assembly improperly constituted for the determination of a quorum. In conclusion, for a district assembly to be properly constituted for the purposes of determining its quorum, both the elected representatives and the 30 per cent government appointees ought to be in place.

In the instant case, since the plaintiff produced no evidence in support of his allegation that at the time of filing this suit, the district chief executives and the government appointees of all the district assemblies, had been withdrawn, he cannot succeed in his quest for a

[p.358] of [2001-2002] 2 GLR 340 declaration and an injunction to prevent the holding of elections for regional representatives to the Council of State. I will thus dismiss this action as unsubstantiated and misdirected.

Atuguba JSC. The trust of the plaintiff’s case is contained in paragraphs (10) to (13) of its statement of case, which aver as follows:

“(10) The plaintiff says by letters written under the hand of the Minister of Local Government and Rural

Development all district chief executives throughout the country have been dismissed.

(11) Further, by letters written by the various regional ministers in their respective regions all persons appointed by the former government in accordance with section 5(d) who otherwise had a four year tenure of office have been removed from office.

(12) In the result there are no district assemblies constituted within the meaning of article 242 of the Constitution, 1992 and section 5(1) of the Local Government Act, 1993 (Act 462) capable of performing any of the functions conferred on district assemblies by the Constitution, 1992 the Local Government Act or any other Law for the time being in force.

(13) Consequently, the plaintiff states and contends that currently there are no district assemblies lawfully constituted to elect two representatives to form the regional electoral college for the purposes of electing the regional representatives to the Council of State as contemplated by the defendant in the notice herein above mentioned.

Wherefore, the plaintiff says the proposed election announced by the defendant to take place on 20 March 2001 is not only unlawful but more seriously unconstitutional.”

(The emphasis is mine.) These averments were denied by the defendant in its statement of case, as follows:

“(7) The defendant denies paragraphs (10) and (11) of the plaintiff’s statement of case, and avers that none of the

[p.359] of [2001-2002] 2 GLR 340 alleged correspondence was addressed to the defendant.

(8) The defendant denies paragraphs (12) and (13) of the plaintiff’s statement of case, and contends that the presiding member of any district assembly is authorised to convene a meeting of the assembly, and further that the quorum for a meeting for an assembly is one-third of the members thereof.”

There is also a general traverse in paragraph (10) of the defendant’s said statement of case.

I will first of all advert my mind to the question of the jurisdiction of this court to entertain the plaintiff’s action. The parties have not raised this issue but I conceive it to be pars curiae to take a point of jurisdiction even though the parties have failed to do so. The celebrated case of Mosi v Bagyina [1963] 1 GLR 337, SC establishes this principle quite clearly by going as far as stating that even after judgment has been given the court itself is bound suo motu to take the point of jurisdiction and vacate its judgment which has been given without jurisdiction. See also Afuah v Sarbah [1974] 1 GLR 147.

The test for ascertaining jurisdiction has long been, what is the main issue, irrespective of the form in which the suit is couched. I dealt with this matter at length in Yeboah v Mensah [1998-99] SCGLR 492 at 553-554. The main issue in this case has been stated by the plaintiff in its memorandum of issues dated 14 June 2001 in paragraph (1) thereof as follows: “Whether or not as at the time of instituting this action the district assemblies were properly constituted according to law.” (The emphasis is mine.) The defendant similarly, in his memorandum of issues dated the 16 May 2001 stated the main issue in paragraph (1) thereof as follows:

“(1) Whether or not with regard to paragraphs (8) and (12) of the plaintiff’s statement of case, the district assemblies at the date of the filing of the writ herein, could transact business and elect representatives to the electoral college.”

(The emphasis is mine.) I dare say, however, that the defendant could have better formulated this issue so as to avoid an impression that he did not after all dispute the factual basis of the plaintiff’s claim as [p.360] of [2001-2002] 2 GLR 340 contained in the said paragraphs (8) and (12) of his statement of case.

Stating the matter more fully, it would be seen from the parties’ statements of their cases and their memoranda of issues filed, that the bone of contention is whether the notice issued by the defendant pursuant to regulations (3) and (4) of the Election (Regional Representatives on Council of State) Instrument, 1993 (CI 1), of its intention to conduct elections by the district assemblies to elect two representatives to the regional electoral college for the purpose of electing regional representatives to the Council of State, violates article 242 of the Constitution, 1992, which provides:

“242. A District Assembly shall consist of the following members— (a) one person from each local government electoral area within the district elected by universal adult suffrage;

(b) the member or members of Parliament from the constituencies that fall within the area of authority of the District Assembly as members without the right to vote;

(c) the District Chief Executive of the district; and (d) other members not being more than thirty per cent of all the members of the District Assembly, appointed by the President in consultation with the traditional authorities and other interest groups in the district.”

The reliance on the provisions of section 5 of Act 462 in addition to article 242 of the Constitution, 1992 by the plaintiff is misconceived as this is an ordinary legislation. It will be seen that though the impugned notice issued by the defendant stems from CI 1 aforesaid, the issue to be decided in these proceedings, falls to be decided, not under CI 1, but under article 242 of the Constitution, 1992. It is therefore a constitutional matter for this court and not a matter to be determined according to ordinary legislation, which, save in certain situations irrelevant to the present action, is outside the purview of this court’s jurisdiction. I dealt with this matter at length in New Patriotic Party v National Democratic Congress [2000] SCGLR 461.

In my view, this action is governed by article 2(1)(a) of the

[p.361] of [2001-2002] 2 GLR 340

Constitution, 1992 which provides, as far as relevant, as follows:

“2. (1) A person who alleges that—

(a) an enactment or anything contained in or done, under the authority of that or any other enactment . . . 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.”

(The emphasis is mine.) As I understand the present action, the crux of the matter is that the defendant has done an act, namely issued a notice under CI 1 for the election in accordance with regulations (3) and (4) thereof, representatives from the district assemblies to an electoral college established by regulation 3 thereof, in circumstances that would infringe article 242 of the Constitution, 1992; and this plainly is within the purview of article 2(1)(a) of the Constitution, 1992. In the similar case of New Patriotic Party v Electoral Commission [1993-94] 1 GLR 124, SC the plaintiff successfully invoked the original jurisdiction of this court when the Electoral Commission purported to let the district assemblies as then constituted under the Local Government Law, 1988 (PNDCL 207) elect district chief executives as provided for under article 242 of the Constitution, 1992, even though the post of district chief executive and the district assemblies, under PNDCL 207 and the Constitution, 1992 are different. Abban JSC (as he then was) stated thus at 130:

“. . . the main issue here is whether the present district assemblies, in addition to their functions as set out in section 6 of PNDCL 207, have also the authority to approve candidates for appointment as district chief executives under article 243(1) of the Constitution, 1992.”

(The emphasis is mine.) Amua-Sekyi JSC similarly stated thus at 135:

“… the issue for determination is whether the district assemblies set up under PNDCL 207 are competent to carry out the constitutional duty of giving approval to the appointment by the President of district chief executives.”

(The emphasis is mine.) Though the issue of jurisdiction was not

[p.362] of [2001-2002] 2 GLR 340 raised in that case, I do not see how it could have been successfully raised, hence it was not; having regard to the main issue in that case, as I have extracted, and the provisions of article 2(1)(a) of the Constitution, 1992 aforesaid. Clearly, the Electoral Commission, in that case, was doing an act purportedly under PNDCL 207 which was inconsistent with article 242 of the Constitution, 1992. Similarly in New Patriotic Party v Rawlings [1993-94] 2 GLR 193, SC this court entertained, no doubt as proper, a subsequent action in which the plaintiff claimed that the purported appointment of district secretaries for the district assemblies of Ghana by the then President of Ghana under section 21(c) of PNDCL 207 was contrary to the Constitution, 1992. In that case, Amua-Sekyi JSC stated the basis of the plaintiff’s action, thus at 198: “As formulated in its writ and statement of case, the complaint of the plaintiff is that the appointments are inconsistent with, and a contravention of articles 242, 243, 246 and 247 of the Constitution, 1992.”

Again it is clear that the plaintiff was complaining that though the President purported to act under PNDCL 207, his said action nonetheless violated the Constitution, 1992 and the action was entertained on those grounds, no doubt under article 2(1)(a) of the Constitution, 1992, aforesaid. The plaintiff’s action failed on the merits not on the grounds of jurisdiction.

There is no doubt that CI 1, under which the defendant’s notice of election was issued, is an enactment within article 2(1)(a) of the Constitution, 1992, as defined by article 295(1) as follows: “enactment’ means an Act of Parliament, a Decree, a Law or a constitutional instrument or a statutory instrument or any provision of an Act of Parliament, a Decree, a Law or of a constitutional or of a statutory instrument.”

As the said notice is said to be inconsistent with article 242 of the Constitution, 1992 I hold that it is an act under an enactment, namely CI 1, which is alleged to be contrary to the Constitution, 1992, namely article 242 thereof and the same is within this court’s jurisdiction.

However, the plaintiff fails on the merits. As noted earlier, the factual basis of his action has been denied by the defendant and yet he made no attempt to lead any evidence of the controverted matters. It is an old principle of the common law that a party must proceed per

[p.363] of [2001-2002] 2 GLR 340 allegata et probata. In this case, the plaintiff proceeded per allegata but wholly dispensed with the probata. In Majolagbe v Larbi [1959] GLR 190 at 192 Ollennu J (as he then was) said: “Proof, in law, is the establishment of fact by proper legal means; in other words, the establishment of an averment by admissible evidence.” In constitutional actions, a reminder of this principle was given in Kwakye v Attorney-General [1981] GLR 9 at 14, SC when Apaloo CJ, in overruling a preliminary objection of the Attorney-General based on the ouster clause of section 15(2) of the transitional provisions of the Constitution, 1979, said:

“This subsection is very widely couched but it seems to us that as the plaintiff sought a relief which this court is prima facie entitled to grant, the defendant who claims that this court’s jurisdiction is ousted by this provision, must provide a factual basis for it. We think the defendant must produce facts which show that the Armed Forces Revolutionary Council took or purported to have taken judicial action against the plaintiff.”

(The emphasis is mine.) See also Republic v Director of Prisons; Ex parte Shackleford [1981] GLR 554.

The plaintiff here did not even exhibit any document as was done in Ekwam v Pianim (No 2) [1996-97] SCGLR 120 in which the Attorney-General exhibited the presidential reprieve granted to the first defendant therein, and the same was judicially noticed by this court, no doubt under section 9 of the Evidence Decree, 1975 (NRCD 323).

Evidence, whether oral or documentary, or by judicial notice, apart, the defendant has stated in paragraph (4) of its statement of case, inter alia, that: “In any event, the defendant would have refrained from supervising any elections, if on the particular date they found a regional electoral college not properly constituted.” (The emphasis is mine.) No doubt the plaintiff rather had in mind, district assembly. There is nothing from the plaintiff controverting this averment. In the circumstances, since the plaintiff’s action is in my view, a quia timet action, it, in the face of that averment, abates and must fail. Before then, the defendant’s notice (which can be viewed from several angles), was at the worst, a threatened act and actionable under article 2 of the Constitution, 1992: see Kwakye v Attorney-General (supra) at 13 and Nana Yiadom I v Amaniapong [1981] GLR 3 at 8, SC Alternatively,

[p.364] of [2001-2002] 2 GLR 340 it was an act inconsistent with the Constitution, 1992 as explained by Adade JSC in New Patriotic Party v Attorney-General [1993-94] 2 GLR 35, SC, and therefore actionable. I now set out what he said at 57-58: “To succeed, the plaintiffs must be able to bring itself squarely within article 2 of the Constitution, 1992. It has been said that familiarity breeds contempt. Article 2 of the Constitution, 1992 has, since its enactment, been repeated so often, both in the courts and elsewhere, that we run the risk of glossing over, or completely ignoring or missing its true import. It must be emphasised that under the article, the conduct complained of need not contravene anything in the Constitution, 1992; it is enough if that conduct is inconsistent with any provision of the Constitution, 1992. An act contravenes an enactment if it breaches that enactment; if it is contrary to that enactment. But an act need not be contrary to an enactment, to be inconsistent with it. In other words, the act may be inconsistent with the enactment, even though it does not necessarily breach it. May be the dividing line is thin; but there surely is a dividing line.”

The plaintiff’s action is also misconceived as it is based on matters as they purportedly stood at the time of the issue of the plaintiff’s writ and not at the date of the contemplated elections. There is no guarantee, as to whether all or any and if so, which, of the district assemblies would have been improperly constituted, assuming the plaintiff’s allegations are true, on 20 March 2001 “and thereafter”, when the said elections would have been held. Its action is therefore speculative and must fail.

By way of obiter dicta, which I hope will be useful, I would say that a vacancy in the post of a district chief executive under article 242 of the Constitution, 1992 does not vitiate the existence of a district assembly, since the Constitution, 1992 itself, in article 243, regards it as an existing assembly; out of which two-thirds majority can elect the district chief executive, who is yet to be a member of such an assembly. I would therefore hold that the district chief executive, though a member of the district assembly, is not, in view of article 243 of the Constitution, 1992 a constitutive member thereof. There is no such

[p.365] of [2001-2002] 2 GLR 340 special treatment for the 30 per cent nominees of the President for membership of the district assembly and I would hold that they are constitutive members of the assembly, in whose absence the district assembly is not properly composed and does not exist. By analogy, I would agree with Bilson v Apaloo [1981] GLR 24, SC which holds that a court is properly established when it is properly composed by the number of justices specified for it and not Republic v High Court, Accra; Ex parte Adjei [1984-86] 2 GLR 511, SC which held the contrary. A district assembly must be properly composed of the specified members before it can exist in law, and thereafter, function through a quorum thereof.

For all the foregoing reasons I would dismiss the plaintiff’s action.

Akuffo JSC. I have had the advantage of reading in draft the opinion delivered by the president of the court, Edward Wiredu Ag CJ. For the reasons he has given, I, too, would dismiss the plaintiff’s action.

Lamptey JSC. I have read the opinion of Edward Wiredu Ag CJ and I agree with the conclusion reached by him that the action of the plaintiff, the National Democratic Congress must be dismissed. I wish however to make a few pertinent observations.

I note that the plaintiff National Democratic Congress acting by its solicitor filed the instant writ of summons together with the affidavit verifying the facts and a statement of case on 16 March 2001. The gravamen and substance of the case of the plaintiff was that a notice published by the defendant Electoral Commission that “a certain number of persons drawn from the ten regions of Ghana standing as candidates for election as regional candidates for election as regional representatives on the Council of State was conduct which was in conflict with and inconsistent with articles 89(2)(c) and 242 of the Constitution, 1992.” The plaintiff contended further that the conduct of the defendant Electoral Commission breached section 5(1) of the Local Government Act, 1993 (Act 462). In the statement of case filed on behalf of the plaintiff, the facts to prove and establish the case were stated. I must point out that contrary to rules 46 and 51 of the Supreme Court Rules, 1996 (CI 16) the plaintiff’s lawyer did not also file in writing any arguments of law.

The defendant acting by its solicitor filed its statement of case on

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7 May 2001, that is some six weeks after the plaintiff sued the defendant. A careful reading of the statement of case leaves no one in doubt that the defendant disputed and denied the main complaint of the plaintiff. No useful purpose would be served by reproducing the relevant paragraphs. Very much like the lawyer for the plaintiff, the lawyer for defendant also breached rules 46 and 51 of CI 16.

In spite of the position presented by the defendant, namely that the defendant denied and disputed the bare averments contained in the plaintiff’s statement of case, the plaintiff did not provide this court with documentary evidence in further proof of its case.

Be that as it may, the lawyer for the plaintiff on 9 June 2001 filed a memorandum of issues in which this court was called upon to determine, among others, the following issues:

“(1) Whether or not as at the time of instituting this action the district assemblies were properly constituted according to law.

(8) The plaintiff will contend that the district assemblies can only perform their duties at elections to the electoral college if and only when they are properly constituted which they are not a present.”

I understand the case of the plaintiff to be that as at 16 March 2001, the district assemblies were not properly constituted according to law. In answer and as a reply, in paragraph (5) of its statement of case the defendant stated as follows: “(5) The defendant denies paragraph (8) of the plaintiff’s statement of case, and specifically denies that the district assemblies were not properly constituted at the date of filing of the plaintiff’s writ . . .”

The plaintiff had provided this court with further statements at paragraphs (10) and (11) of the statement of its case thus:

“(10) Plaintiff says that by letters written under the hand of the Minister of Local Government and Rural

Development all district chief executives throughout the country have been dismissed.

(11) Further by letters written by the various regional ministers in their respective regions all persons appointed by the former government in accordance with section 5(d)

[p.367] of [2001-2002] 2 GLR 340 who otherwise had a four year tenure of office have been removed from office.”

These statements were denied by the defendant at paragraph (7) of its statement of case, to wit: “(7) The defendant denies paragraphs (10) and (11) of the plaintiff’s statement of case, and avers that none of the alleged correspondence was addressed to the defendant.” The plaintiff did not produce copies of the correspondence referred to in paragraphs (10) and (11) of its statement of case. The failure or omission or both on the part of the plaintiff to provide this court with the said correspondence was fatal to the case it put forward.

In passing, I must necessarily cite article 243(1) of the Constitution, 1992 which provides as follows:

“243. (1) There shall be a District Chief Executive for every district who shall be appointed by the President with the prior approval of not less than two-thirds majority of members of the Assembly present and voting at the meeting.”

The Constitution, 1992 is conspicuously silent on the subject matter of the removal of a district chief executive from office. It is trite law that the power to appoint a person to hold an office of profit includes a power in that person to remove the person appointed from that office. In my opinion, it would be unlawful for a person other than the President to purport to remove a district chief executive from office as a district chief executive. It is my further opinion that it is only the President who has the lawful power and authority to terminate the membership of all persons duly and regularly appointed as members of a district assembly by the President pursuant to article 242(d) of the Constitution, 1992. This is a further reason that supports my finding that the failure or omission or both on the part of the plaintiff to provide this court with documentary evidence of the removal from office of the district chief executives was fatal to its case.

In the result, it will be seen that the conduct of the defendant which had been proved and established by the plaintiff’s statement of case to amount to a breach or violation of any provision of the Constitution, 1992.

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Adzoe JSC. My Lords, it is not disputed that the defendant, the Electoral Commission of Ghana, is a statutory body which is charged, inter alia, to conduct and supervise elections in Ghana. It is not also disputed that on 15 February 2001, the defendant caused to be published a notice indicating that the defendant had decided to hold elections on 20 March 2001, to elect regional representatives to the Council of State. That election is authorised by the Election (Regional Representatives on Council of State) Instrument, 1993 (CI 1), which stipulates that the elections should be carried out by an electoral college established in each of the regions and including two representatives nominated by each district assembly in the region.

Article 242 of the Constitution, 1992 provides that a district assembly shall consist of the following members:

“(a) one person from each local government electoral area within the district elected by universal adult sufferage;

(b) the member or members of Parliament from the constituencies that fall within the area of authority of the District Assembly as members without the right to vote;

(c) the District Chief Executive of the district; and (d) other members not being more than thirty per cent of all the members of the District Assembly, appointed by the President in consultation with the traditional authorities and other interest groups in the district.”

These provisions are repeated in section 5 of the Local Government Act, 1993 (Act 462).

After the said notice issued on 15 February 2001, the plaintiff political party which is the National Democratic Congress on 16 March 2001 took out a writ before this court invoking the original jurisdiction of the court seeking the following reliefs:

“(1) A declaration that the defendant’s notice to conduct the elections of regional representatives to the Council of State on 20 March 2001 is an act of the defendant which is inconsistent with or not in keeping with or is in contravention of articles 89(2)(c) and 242(c) and (d) of the Constitution, 1992 of the Republic of Ghana and therefore null and void.

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(2) An order of perpetual injunction restraining the defendant by itself, its servants and agents from conducting the said election on 20 March 2001 or any other date.

(3) An order restraining the defendant by itself or its servants and agents from conducting the said elections until the determination of the suit herein.

(4) Any other directives as to give effect or enable effect to be given to the declaration herein sought.”

In support of the claim the plaintiff contends that the district assemblies were not, as at the time of the publication of notice for the elections, properly constituted because of the following reasons, namely:

“(1) That the Minister of Local Government had written dismissing all district chief executives from office.

(2) That the regional ministers in their respective regions had also written to declare that persons appointed by the previous National Democratic Congress government were removed from office.”

The plaintiff therefore concludes that as a result of these so-called removals and dismissals, there are no district assemblies in place to elect their representatives to the regional electoral colleges that are required by law to elect the regional representatives to the Council of State. The plaintiff instituted the action before this court because according to the plaintiff “the notice to conduct the elections is inconsistent with . . . or is in contravention of articles 89(2)(c) and 242(c) and (d) of the Constitution, 1992.”

I have already quoted article 242(c) and (d) of the Constitution, 1992 which provide that the district chief executive and at least 30 per cent of the President’s appointees are components of the district assembly.

The defendant has denied the plaintiff’s averments that the district chief executives and the government appointees to the assemblies have been removed or dismissed. The defendant has also expressly denied that there are no properly constituted district assemblies. Above all the defendant contends that the action is misconceived.

Article 89(2)(c) of the Constitution, 1992 which the plaintiff

[p.370] of [2001-2002] 2 GLR 340 purports also to build his case upon provides simply that the Council of State shall consist of, among others, one representative from each region elected by the electoral college comprising the district representatives.

I agree that the plaintiff’s action should be dismissed. I have two reasons for concurring in this conclusion. It is provided by article 130(1) of the Constitution, 1992 that subject to the jurisdiction of the High Court in the enforcement of the fundamental human rights and freedoms provide for by the Constitution, 1992, the Supreme Court has exclusive original jurisdiction in all matters relating to the enforcement or interpretation of the Constitution, 1992. And under article 2(1)(b) of the Constitution, 1992 any person who alleges that “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.” There is hardly any doubt that the plaintiff has come before this court under these provisions of the Constitution, 1992. So he says that the defendant’s which is inconsistent with or is in contravention of articles 89(2)(c) and 242(c) and (d) of the Constitution, 1992.

The question whether a mere intention to do an act is sufficient to constitute an “act or omission” within the provisions of article 2(1)(b) of the Constitution, 1992 is not new before this court. The court decided just recently on 21 November 2000 that a mere declaration of intent is not an act but a mere intention which is not justiciable. That decision was in the case of New Patriotic Party v National Democratic Congress [2000] SCGLR 461. It was a majority decision of three to two. My learned sister Bamford-Addo JSC, reviewed the import of article 2(1)(b) of the Constitution, 1992 and observed at 467: “As can be perceived, it is the act of a defendant, not his intention, which is the prerequisite for the invocation of a constitutional action under article 2(1)(b) of the 1992 Constitution.” And my learned brother Kpegah JSC also had this to say at 494:

“It must 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 (NDC), to put up as parliamentary candidates for Asante Akyem North and

[p.371] of [2001-2002] 2 GLR 340

Bosomtwe Constituencies the second and third defendants, respectively. The law does not publish mere declarations 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 stage referred to in law as locus poenitentiae.”

In his dissenting opinion my learned brother Acquah JSC expressed the view at 508 that: “. . . where one discovers from the acts and omissions of others that the 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.”

I find that reasoning very attractive even though I have my doubts if the very simply language used in article 2(1)(b) of the Constitution, 1992 can be so stretched by the rules of construction to include an intention. As I understand the rules, the courts do not have to go on a voyage of discovery for the meaning of a statutory or constitutional provision whose language is not imprecise or ambiguous. The legislature must be taken to intend what they have clearly expressed, and no more: see Awoonor-Williams v Gbedemah (1969) 2 G & G 438. All want to say is that I prefer the majority decision in the New Patriotic Party v National Democratic Congress case (supra). At any rate, I feel bound by that judgment unless this court feels it does not make good law.

My second reason for dismissing this action is the manner the plaintiff has presented its case. No lawyer coming before the courts as a plaintiff needs to be reminded that he must make out a credible case in his writ and statement of claim. It is for very good cause that rule 46 of the Supreme Court Rules, 1966 (CI 16) enjoins a plaintiff to file a statement of case in which he must state “the facts and particulars, documentary or otherwise, verified by an affidavit, upon which the plaintiff seeks to rely.” It is a matter of regret that the plaintiff in this case has not produced before the court the notice upon which it has founded its action or the letters it relies on as having decimated the district assemblies so as to render them non-functional. There is no

[p.372] of [2001-2002] 2 GLR 340 means it can succeed in its claim, and I have no hesitation in dismissing the action.

Action dismissed.

D R K S