REPUBLIC vs. HIGH COURT, BOLGATANGA AND ANOTHER; EX PARTE HAWA YAKUBU [2001-2002] 1 GLR 311

CASES REFERRED TO:

(1) Seidu (Fati) v Yakubu (Hawa), High Court, Bolgatanga, 6 January 2001, unreported.

(2) Yeboah v Mensah (J H) [1998-99] SCGLR 492.

APPLICATION to the Supreme Court for an order of certiorari to quash the order of the High Court, Bolgatanga, inter alia, restraining the applicant who had been declared the winner of the parliamentary elections for the Bawku Central Constituency in the 7 December 2000 parliamentary elections from holding herself out as the duly elected member of Parliament for the constituency. The facts are sufficiently stated in the decision of the court delivered by Acquah JSC.

Nana Akufo-Addo (with him Philip Addison and Miss Yvonne Osei Gyau) for the applicant.

Kwaku Baah (with him James B Kaba) for the second respondent-petitioner.

J B Quashie-Idun for the Electoral Commission.

Acquah JSC. Delivered the judgment of the court. On Tuesday, 15 January 2001 we unanimously granted the prayer of Madam Hawa Yakubu, the applicant herein, to quash the proceedings and order of the High Court, Bolgatanga in Fati Seidu v Hawa Yakubu, High Court, Bolgatanga, 6 January 2001, unreported. We reserved our reasons which we now proceed to deliver.

Madam Hawa Yakubu and Madam Hajia Fati Seidu were two of the candidates that contested in the 7 December 2000 parliamentary elections for the Bawku Central Constituency. Madam Hawa Yakubu stood on the ticket of the New Patriotic Party (NPP), while Madam Hajia Fati Seidu was the National Democratic Congress (NDC) candidate. In all there were 151 polling stations in that constituency. The result of the votes counted showed Madam Hawa Yakubu winning that parliamentary seat. Thereafter, Madam Hajia Fati Seidu filed a petition at the High Court, Bolgatanga, against Madam Hawa Yakubu as the first respondent; the Electoral Commission as the second respondent and the Attorney-General as the third respondent, for:

“(1) An order of the honourable court directing an examina-

[p.314] of [2001-2002] 1 GLR 311 tion of all votes cast for the parliamentary elections in all the 151 polling stations of the Bawku Constituency and in particular to order a scrutiny of the votes of the four polling stations that were not accounted for on 7 and 8 December 2000.

(2) A declaration by the court that the petitioner had majority of all lawful votes cast for the parliamentary elections in the Bawku Central Constituency conducted on 7 December 2000.

(3) A perpetual injunction restraining the first respondent from styling and/or holding out herself as the duly elected member of Parliament for the Bawku Central Constituency and more particularly, from taking up a seat in Parliament and participating in any proceedings of Parliament.

(4) A perpetual injunction restraining the second respondent and the third respondent from gazetting the first respondent as the duly elected member of Parliament for the Bawku Central Constituency.”

A notice of discontinuance was later filed to discontinue the petition against Madam Hawa Yakubu.

On 6 January 2001 the High Court, Bolgatanga granted the discontinuance and after hearing counsel for the petitioner, the second respondent and that of the third respondent, proceeded to order: “. . . the recollation and adding up of the polling officers reports of votes cast as forwarded to the returning officer after the election on 7 December 2000 and if the matter of controversy over the actual figures are not resolved by that exercise, for the parties, ie the second respondent, a representative of the third respondent, two representatives each of the National Democratic Congress and the New Patriotic Party to proceed further to take a physical count of all the valid votes cast respectively for the National Democratic Congress and the New Patriotic Party candidates. The designated team is to compile a report to be signed by each one of them indicating the returns or votes or both from each polling station for each of the two parties. The report in [p.315] of [2001-2002] 1 GLR 311 the form of an affidavit must be filed in this court before the close of day on Monday, 8 January 2001.”

It is the proceedings and order of 6 January 2001 that we quashed following Madam Hawa Yakubu’s application for certiorari.

Two reasons were advanced by Nana Akufo-Addo, leading counsel for the applicant in support of the application: first, the proceedings and order were made in breach of the rules of natural justice, particularly, the audi alteram partem rule, and secondly, the petition was premature in view of section 18(1) of the Representation of the People’s Law, 1992 (PNDCL 284).

Mr Kwaku Baah, counsel for the second respondent filed no papers in opposition, and did indeed indicate at the hearing that he was not opposing the grant of certiorari.

Now, from the reliefs set out in the petition at the High Court, Bolgatanga, it is evidently clear that the petitioner was challenging the validity of the election of Madam Hawa Yakubu, and even sought an injunction to prevent her from taking her seat in Parliament. Such a petition is an election petition within the intendment of article 99(1)(a) of the Constitution, 1992 and section 16 of PNDCL 284. Sections 16, 17 and 18 of PNDCL 284 regulate the presentation of an election petition, while sections 19, 20, 21, 22 and 23 deal with the handling of an election petition by the High Court.

Section 16 of PNDCL 284 gives the High Court, an exclusive original jurisdiction in election petitions. Section 17 of PNDCL 284 sets out those who are competent to present an election petition in the following words:

(a) a person who lawfully voted or had a right to vote at the election to which the petition relates;

(b) a person claiming to have had a right to be elected at the election;

(c) a person alleging himself to have been a candidate at the election;

(d) a person claiming to have had a right to be nominated as a candidate at the election.

Section 18(1) of PNDCL 284 which regulates the time within which an election petition should be presented, provides:

“18. (1) An election petition shall be presented within

[p.316] of [2001-2002] 1 GLR 311 twenty-one days after the date of the publication in the Gazette of the result of the election to which it relates, except that a petition questioning an election on an allegation of corrupt practice and specifically alleging a payment of money or other award to have been made by the person whose election is questioned or to have been made on his behalf to his knowledge, may be presented within twenty-one days after the date of the alleged payment.”

The language of section 18(1) of PNDCL 284 is very clear. If the basis of the petition is that of corrupt practice in which money or other award is alleged to have been paid, then the petition should be presented within twenty-one days after the date of the alleged payment. In all other situations, the election petition is to be filed within twenty-one days after the date of the Gazette publication of the results of the disputed election. Section 18(2) of PNDCL 284 requires that in both situations above, the petitioner is to deposit ¢20,000 as security for costs within that 21 days’ period.

Finally, section 18(3) of PNDCL 284 unambiguously provides that the 21 days’ time limit shall not be extended. This means that the High Court has no power, not even under Order 64, r 6 of the High Court (Civil Procedure) Rules, 1954 (LN 140A), to grant an extension of time in respect of this twenty-one days’ time limit.

In sum, the following may be deduced as the essential requirements of an election petition. First, it may be filed by one or more of the persons set out in section 17 of PNDCL 284. Secondly, the High Court is the only court with original jurisdiction in the determination of the petition. Thirdly, if the petition alleges corrupt practice in which money or other award is alleged to have been paid, then it must be filed within 21 days after the date of the alleged payment. In all other situations, the petition must be filed within 21 days after the date of the Gazette publication of the results of the disputed election. Fourthly, the petitioner must deposit ¢20,000 as security for cost within the 21 days’ time limit. And it must be noted that the 21 days’ time limit within which the petition must be filed cannot be extended: see Yeboah v Mensah (JH) [1998-99] SCGLR 492 at 538-539.

In the instant case, no allegation of corrupt practice by any of the respondents was alleged in the petition of Madam Hajia Fati Seidu.

[p.317] of [2001-2002] 1 GLR 311

Neither was there any mention of payment of money or other award by any of the respondents or anyone on their behalf. That petition therefore falls within those required to be filed within 21 days after the date of the Gazette publication of the results of the disputed election. The Gazette publication of the results of the parliamentary election of the Bawku Central Constituency was made on 5 January 2001.

As to when this election petition was filed at the High Court, Bolgatanga, the applicant in her statement of case stated that it was filed on 28 December 2000. But in the notice of discontinuance filed at the High Court, Bolgatanga, it was stated therein that the petition was filed on 15 December 2000. Indeed, the notice of discontinuance itself was filed on 28 December 2000. Now, whether the petition was filed on 15 or 28 December 2000, the undisputed fact is that the petition was filed before 5 January 2001. Consequently, the contention that the petition is premature is valid.

There must certainly be sound policy considerations underlying the need to mount election petitions only after the Gazette publication of the results of the election in cases where no corrupt practices are alleged. The period before the publication of the results may be used by dissatisfied candidates or their agents to seek amicable resolution of their complaints with the Electoral Commission. If the complaint relates to the counting of the votes, they can ask for recounting. And indeed, regulation 37(3) of the Public Elections Regulations, 1996 (CI 15) provides:

“(3) A candidate or his counting agent may, if present when the counting of the votes is completed, require the presiding officer to have the votes recounted or again recounted, but the presiding officer may refuse to perform the second recount if, in his opinion, the request is unreasonable and report such request to the returning officer who shall recount the ballots for that polling station only at the constituency centre.”

Finally, the contention that the proceedings and order of 6 January 2001 were made in violation of the audi alteram partem rule is certainly indefensible. Madam Hawa Yakubu was the New Patriotic Party parliamentary candidate in the disputed election. The petition sought not only a recount of the votes but also an order to restrain her from holding herself out as the duly elected member [p.318] of [2001-2002] 1 GLR 311 of Parliament for the Bawku Central Constituency. On the facts and in the face of the reliefs claimed in the petition, even if she was not made a party in the petition, the High Court itself on its own motion, has authority to join her in the petition for an effectual and complete determination of the matters in controversy. For Order 15, r 6(2)(b) of LN 140A as amended by the High Court (Civil Procedure) (Amendment) (No 2) Rules, 1977 (LI 1129) provides:

“(2) At any stage of the proceedings the Court may on such terms as it thinks just and either of its own motion or on application — … (b) order any person who ought to have been joined as a party, or whose presence before the Court is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated upon, to be added as a party.”

In the instant case, although the court granted the discontinuance against Madam Hawa Yakubu, yet the court in its order of 6 January 2001 directed that Madam Hawa Yakubu’s representatives or agents take part in the physical counting of the votes. The order reads, in part:

“. . . two representatives each of the National Democratic Congress and the New Patriotic Party to proceed further to take a physical count of all the valid votes cast respectively for the National Democratic Congress and the New Patriotic Party candidates.”

But the New Patriotic Party candidate (that is Madam Hawa Yakubu) whose votes were to be recounted was not given the opportunity to be heard nor even to be present at the venue for the recounting. Indeed, the order threatened punishment for anyone who gets nearer the venue of the recounting. Such an order cannot certainly be permitted to stand.

It is for the above reasons that we granted the applicant’s prayer and quashed the proceedings and order of 6 January 2001.

Application granted.

DRKS