REPUBLIC vs. ELECTORAL COMMISSION AND ANOTHER; EX PARTE AMOO [1997-98] 1 GLR 938

CASES REFERRED TO

(1) Republic v District Magistrate Keta; Ex parte Hedo [1971] 2 GLR 459.

(2) Republic v Accra Circuit Court; Ex parte Appiah [1982-83] GLR 129.

[p.943] of [1997-98] 1 GLR 938 (3) Republic v Court of Appeal; Ex parte Salifu, Supreme Court, Accra, 18 July 1995, unreported. (4) R v Commissioner of Inland Revenue, In re Nathan [1884] 12 QBD 461.

(5) R v Charity Commissioner for England & Wales [1897] 1 QB 407.

(6) R v Council of Metropolitan Borough of Poplar (No 1) [1992] 1 KB 72.

(7) Waldron, Ex parte [1986] QB 824.

(8) R v Inland Revenue Commissioner; Ex parte Mead [1993] 1 All ER 772.

(9) R v Paddington Valuation Officer; Ex parte Peachey Property Corporation Ltd (No 2) [1966] 1 QB 380; [1965] 3 WLR 426; [1965] 2 All ER 836, CA.

(10) Leech v Parkhurst Prison Deputy Governor [1988] 1 All ER 485.

(11) Ghana Bar Association v Attorney-General [1995-96] 1 GLR 198, SC.

(12) Preston v Inland Revenue Commissioners [1985] 2 All ER 327.

(13) HT v Price Commission [1976] 1 CR 170.

(14) Fry, Ex parte [1954] 2 All 118.

(15) R v Metropolitan Police Commissioners; Ex parte Parker [1954] 1 WLR 781.

(16) Buckoke v Greater London Council [1971] 1 Ch 655; [1971] 2 WLR 760; [1971] 2 All ER 254, CA.

(17) R v Statutory Visitors to St Lawrence Hospital; Ex parte Pritchard [1953] 1 WLR 1158; [1953] 2 All ER 766.

(18) R v Hull Prison Board of Visitors; Ex parte Germaine [1978] QB 678; [1978] 2 WLR 598; [1978] 2 All ER 198, DC.

(19) R v Hull Prison Board of Visitors; Ex parte Germaine; R v Wandsworth Prison Board of Visitors;

Ex parte Rosa [1979] QB 425; [1979] 2 WLR 42; [1979] 1 All ER 701, CA (20) Meade v Haringey London Borough Council [1979] 1 WLR 637; [1979] 2 All ER 1016, CA.

(21) R v Council of Civil Service [1985] AC 374.

[p.944] of [1997-98] 1 GLR 938 (22) Inland Revenue Commission v National Federation of Self-Employed and Small Business Ltd [1981] 2 WLR 722; [1981] 2 All ER 93; (1981) 125 SJ 325, HL.

(23) Republic v Commissioner of Income Tax; Ex parte Maatschappij de Fijnhouthandel NV (Fynhout)

[1971] 1 GLR 213.

(24) Republic v Commissioner of Income Tax; Ex parte Maatschappij de Fijnhouthandel NV (Fynhout)

[1974] 1 GLR 283.

(25) Republic v Minister for the Interior; Ex parte Bombelli [1984] 1 GLR 204 (26) Mason v Secretary of State for the Environment and Bromsgrove District Council [1984] 1 PL 332. (27) Hollis v Secretary of State for the Environment [1989] 47 P&CR 351.

(28) R v Electricity Commissioners; Ex parte London Electricity Committee Co Ltd [1924] 1 KB 171. (29) Republic v President, National House of Chiefs; Ex parte Akyeamfour II [1982-83] GLR 10, CA. (30) R v General Medical Council; Ex parte Colman [1990] 1 All ER 489.

(31) R v Secretary of State for Foreign and Commonwealth Affairs; Ex parte Everett [1989] QB 811. (32) R v Norfolk County Council [1989] QB 619.

(33) R v Agricultural Dwelling-House Advisory Committee for Bedfordshire; Ex parte Borough [1986] 19 HLR 367.

(34) Bradbury v London Borough of Enfield [1967] 1 WLR 1311; [1967] 3 All ER 434, CA.

NATURE OF PROCEEDINGS

APPLICATION by the candidate of the New Patriotic Party for the Ayawaso West-Wuogon Constituency for the 7 December 1996 Parliamentary Elections to the High Court, Accra for orders of certiorari and mandamus to quash the results declared by the Electoral Commission on 8 December 1996 of the Ayawaso West-Wuogon Constituency and of the declaration of the result published by the commission in Gazette No 56 of 19 December 1996. The facts are sufficiently stated in the ruling.

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COUNSEL

Peter Ala Adjetey (with him Kwamina Bartels) for the applicant.

J B Quashie-Idun (with him Mrs Janet Amegatcher) for the first respondent.

Samuel Cudjoe for the second respondent.

JUDGMENT OF DORDZIE J.

The applicant herein, Mr George Isaac Amoo, brought this application seeking from this court the orders of certiorari and mandamus directing the first respondent, the Electoral Commission, to bring to this court to be quashed the results declared by it or its authorised agents on or about 8 of December 1996 of the Ayawaso West-Wuogon Constituency parliamentary elections held on 7 December 1996. He further seeks that the first respondent brings the declaration made by it of the said results in the said constituency in Gazette No 56 of 19 December 1996 to be quashed. The first respondent, the Electoral Commission, be compelled to assemble, collect and collate the results from all polling stations of the actual votes cast for each of the candidates who contested the parliamentary elections in the said constituency without recounting the ballots in the ballot box and declare the candidate to whom most votes were given at the said election and to publish in the Gazette a notice stating the name of the person elected and the total number of votes cast for each candidate.

The grounds the applicant stated for bringing this application are as follows:

“(1) Regulation 41 of the Public Elections Regulations, 1996 (CI 15) imposes on the first respondent, the Electoral Commission, the duty to assemble the results of a parliamentary election from all the polling stations in a constituency without recounting the ballots in the ballot boxes and, inter alia, publicly declare to be elected in a parliamentary election the candidate to whom the most votes have been given and to publish in the Gazette the name of the person elected and the total number of votes cast for each candidate. In the parliamentary elections held on 7 December 1996 in the Ayawaso

West-Wuogon Constituency in the Greater Accra Region of the Republic of Ghana, the

[p.946] of [1997-98] 1 GLR 938 results from one polling station, number C060701A, were not dealt with in accordance with the said regulation 41 and were not added to the total votes cast for each of the candidates in the said constituency before the returning officer purported to declare the second respondent elected at the said parliamentary election.

(2) At two of the polling stations in the said constituency the votes cast for the applicant were wrongly and erroneously credited to two other candidates while the votes for these candidates were wrongly credited to the applicant thereby “short-changing” him and depriving him of some 329 votes.

(3) Since the said mandatory provisions were not complied with by the returning officer for the Ayawaso West-Wuogon Constituency in respect of the elections held on 7 December 1996 before declaring or purporting to declare the second respondent elected, the said declaration was null and void and of no effect as being contrary to the mandatory statutory provisions and so also was the Gazette publication purporting to give notice of the name of the second respondent as the person elected at the said election in the said constituency.

(4) Both the said declaration and the Gazette notice ought to be quashed and the Electoral Commission is under a statutory duty to comply with the mandatory statutory provisions and to declare the result or results for the said election in the said constituency on the said date in accordance with law and this honourable court ought to compel the first respondent to do this by an order of mandamus.”

In an affidavit supporting the application, the applicant deposed to the following facts: That he obtained a copy of the returning officer’s tally on which the results purporting to have been received from all the polling stations in the said Ayawaso West-Wuogon constituency were said to have been assembled, collated or added up. The tally is exhibited with the affidavit as

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GIA1. That there were serious mistakes in the tally. He wrote to the Electoral Commission drawing its attention to the errors and requesting a correction to be made, a correction would have resulted in he being declared elected for that constituency. The Electoral Commission did not comply with his request. He consequently filed an election petition seeking to set aside the results but the petition was struck out by the High Court as not being in compliance with the statutory provision with regards to the payment of security within the statutory period. Not satisfied with the decision of the court, he filed an appeal against the court’s decision. According to the applicant, while the election petition was pending he secured a copy of a letter written by the Electoral Commission to the Attorney-General in which it not only admitted the errors but also added that the results from one of the polling stations, No C060701A, were not added to the total votes cast for each of the candidates in the Ayawaso West-Wuogon Constituency before what purported to be the final results were declared by the first respondent. The letter from the Electoral Commission to the Attorney-General is exhibited and marked GIA5.

The respondents opposed the application. The first respondent in an affidavit filed on 23 June 1997 opposing the application denied that they wrote GIA5. In a later affidavit filed on 14 July 1997 the first respondent admitted the existence and authenticity of GIA5. I will comment on this discrepancy in the affidavits later in this ruling. The second respondent also filed an affidavit opposing the application. The grounds for opposing the application as contained in their affidavits are that:

(1) The application is an action to question electoral results and such an action can only be commenced by way of an election petition and not by a prerogative writ. The applicant has exhausted the remedy of petition and cannot sue by certiorari or mandamus.

(2) There is an appeal pending in the matter, and as such the applicant’s application for the prerogative orders of certiorari and mandamus cannot be tenable in law.

Hearing of this matter commenced on 21 October 1997 and before counsel for the applicant could be heard, counsel for the second respondent raised preliminary objections to the application

[p.948] of [1997-98] 1 GLR 938 being entertained by this court. After hearing arguments on the preliminary points raised, I deferred ruling on the preliminary objection and decided to hear arguments of all the parties in the substantive matter and rule on the preliminary objection and the substantive matter at the same time. This was essentially because the points raised as preliminary objection are the same as the grounds filed by the second respondent in her affidavit opposing the substantive application. I therefore decided, in order not to prejudice the outcome of the substantive matter, to hear arguments on the substantive matter as well, to enable me dispose of every aspect of the matter in my final ruling.

I now proceed with my ruling on the preliminary objections. The grounds for the preliminary objection as submitted by counsel for the second respondent are that: The application by its wording is questioning election results and election results cannot be questioned by any other procedure except by petition. Counsel referred to section 16 of the Representation of the People Law, 1992 (PNDCL 284) and further argued that an application for an order of certiorari is the wrong procedure and is intended to circumvent the provisions of PNDCL 284. Counsel for the second respondent again submitted that since the applicant has an appeal pending in respect of the same case, he cannot apply for an order of certiorari.

Counsel for the applicant opposed the submission made by the second respondent’s counsel and submitted that their application is not citing electoral malpractice, but that a mandatory statutory duty imposed on the Electoral Commission by the Public Elections Regulations, 1996 (CI 15) has not been complied with thereby making the act of the Electoral Commission null and void. On the question of an appeal pending on the same matter and therefore an application for an order for certiorari cannot be brought to this court, counsel submitted that the subject matter of the case in which an appeal is pending is different from the subject matter of the present application. The remedies of appeal and certiorari are not mutually exclusive and the applicant can exercise the rights of appeal and certiorari at the same time. This argument is supported by the case of Republic v Keta District Magistrate; Ex parte Hedo [1971] 2 GLR 459.

The preliminary points I am to consider are two:

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(1) Can the applicant apply for the judicial remedies of certiorari and mandamus while he has an appeal pending in the Court of Appeal against Gbadegbe J’s ruling of 2 May 1997 dismissing the applicant’s petition for non-compliance with payment of security as prescribed by law within the statutory period?

(2) Has the applicant an alternative remedy to the application before me and therefore cannot apply for the prerogative writs of certiorari and mandamus?

On the first submission, that is whether an appeal and the prerogative remedies can be sought side by side, the applicant in his affidavit supporting this application has deposed to the fact that while the petition which is now a subject matter of appeal was pending, he secured a copy of a letter, exhibit GIA5, written by the first respondent. By exhibit GIA5 the Electoral Commission admits certain mistakes and errors in the parliamentary elections in Ayawaso West-Wuogon constituency. It was exhibit GIA5 which prompted the present application before this court. The matter which is on appeal before the Court of Appeal is the ruling of Gbadegbe J dated 2 May 1997 dismissing the applicant’s election petition for non-compliance with the payment of security prescribed by law within that statutory period. The said ruling is not before me in the present application. What is before me is an application for certiorari to quash the results declared on 8 December 1996 of the Ayawaso West-Wuogon Constituency parliamentary elections and for an order of mandamus to compel the Electoral Commission, the first respondent, to comply with the provisions of CI 15.

In my view the appeal and the application before me though involving the same parties, are in respect of two distinct legal issues. It would therefore be fallacious to argue that Gbadegbe J’s ruling which is on appeal is the same matter before me, for the simple reason that I would not be seised with jurisdiction to hear and quash a ruling of another High Court. That in my view is the sole prerogative of the Supreme Court. It is therefore my finding that the applicant is not barred from pursuing the present prerogative remedies just because there is an appeal pending in respect of an election petition between the same parties.

[p.950] of [1997-98] 1 GLR 938

Even if for the purposes of argument, the matter on appeal is the same one before me, our courts have always held that certiorari and appeal are not alternative remedies but can both be exercised. As far back as 1971 Francois J (as he then was) held in the case of Republic v District Magistrate, Keta; Ex parte Hedo (supra) at 464 that: “I must say that it is well established that the remedies of certiorari and appeal are not mutually exclusive one of the other, but can be both exercised by an aggrieved party.” In the case of Republic v Accra Circuit Court; Ex parte Appiah [1982-83] 1 GLR 129, CA the Court of Appeal held the same view that the two remedies can be exercised independently of the other by an aggrieved person. The Supreme Court in the case of the Republic v Court of Appeal; Ex parte Alhaji Khalid Salifu, Supreme Court, Accra, 18 July 1995, unreported, has this to say per Charles Hayfron-Benjamin JSC: “It is the practice in the Superior Courts that where there is an appeal on a matter and an application for certiorari pending, the court will adjourn the application for certiorari until the appeal is disposed of. It is trite learning that certiorari and appeals are not alternative remedies.”

The Supreme Court relied on the case of Republic v Circuit Court; Ex parte Appiah (supra) and concluded that the applicant was entitled to pursue both remedies simultaneously.

In my opinion, it is not the correct statement of the law to say that this court cannot entertain an application for the order of certiorari because there is an appeal pending in the matter. The practice I can follow if the judgment on appeal were the same matter before me, is to adjourn this application until the appeal is disposed of. However, as I have held supra, I do not consider the appeal and the present application to be the same. This leg of the preliminary objection fails and it is accordingly overruled.

The second leg of the objection has it that statute has laid down procedure for challenging election results. In other words, an alternative remedy which is adequate has been provided so prerogative writs will not lie. The statutory provision counsel relied on for the above submission is section 16(1) of the Representation of The People Law, 1992 (PNDCL 284). Section

[p.951] of [1997-98] 1 GLR 938

16(1) of PNDCL 284 says: “The validity of an election to Parliament may be questioned only by a petition brought under this Part.” The grounds upon which a petition may be brought to the High Court for relief to be granted are laid down in section 20(1) of PNDCL 284 which says:

“20. (1) The election of a candidate shall be declared void on an election petition if the High Court is satisfied— (a) that general bribery, general cheating, general intimidation or other misconduct or circumstances, whether similar to those specified in this Law or not, have so extensively prevailed that they may be reasonably supposed to have affected the result of the election;

(b) that there has been non-compliance with any provision of this Law or of regulations made under this Law and that it appears that the election was not conducted in accordance with the principles laid down by law and that such non-compliance affected the results of the election;

(c) that a corrupt or illegal practice was committed in connection with the election by the candidate or with his knowledge or consent, or by any agent of the candidate; or (d) that the candidate was at the time of his election a person not qualified or a person disqualified for election.”

There is the need to restate the grounds of the applicant’s application here for the purposes of comparing them with the above grounds to find out whether the grounds for this application fall within the ambit of section 20(1) of PNDCL 284. The ground for the applicant’s application is that the Electoral Commission breached regulation 41 of CI 15 which deals with the declaration and publication of contested election results in that in the Parliamentary election held on 7 December 1996 in the Ayawaso West-Wuogon constituency:

[p.952] of [1997-98] 1 GLR 938

(1) The results from one polling station, No C060701A, were not added to the total votes cast for each of the candidates in the said constituency before the returning officer declared the second respondent elected.

(2) The votes cast in two polling stations were erroneously credited to two other candidates while the votes cast for these candidates were wrongly credited to the applicant, depriving the applicant of 239 votes as a result.

I will now take the various grounds under section 20(1) of PNDCL 284 and compare them with the grounds on which the application before me is founded. The ground for the application on the face of it is not that there had been general bribery or intimidation or similar acts which affected the results. It is not also that a corrupt or illegal practice was committed in connection with the election by the candidate. Again it is not also that the candidate is not qualified or disqualified for elections. Can it then be said that the applicant’s application can fall under section 20(1)(b) which says that:

“(b) that there has been non-compliance with any provision of this Law or of regulations made under this Law and that it appears that the election was not conducted in accordance with the principles laid down by law and that such non-compliance affected the results of the election.”

“[T]his Law or of regulations made under this Law” as stated in section 20(1)(b) refers to PNDCL 284 and LI 1537, the regulation made under PNDCL 284. It is noteworthy that LI 1537 has since been repealed by CI 15. The word “and” at the end of line two of section 20(1)(b) is not disjunctive but conjunctive. Therefore section 20(1)(b) of PNDCL 284 is limited to that Law, ie PNDCL 284 and the regulations made under it, ie LI 1537. Any other construction, in my view, will defeat the whole purpose of the section and will also do violence to the plain language and spirit of the section. The fact that PNDCL 284 is limited to that Law and the regulations made thereunder is amply supported by section 20(2)(b)(i) which re-emphasises the provisions “of this Law or of regulations made under this Law.” In my view, reading the section

[p.953] of [1997-98] 1 GLR 938 as a whole it seems to me that the legislature intended the “and” in this particular section to have its ordinary meaning as a conjunctive. It is my conclusion therefore that the law under which the applicant seeks the intervention of this court does not fall within the purview of PNDCL 284 and that, that Law, in my respectful view, is inapplicable to determine the present prayer of the applicant.

Counsel for the second respondent in his submission referred to the following cases: (a) R v Commissioner of Inland Revenue; In Re Nathan [1884] 12 QBD 461: (b) R v Charity Commissioners for England & Wales [1879] 1 QB 407; and (c) R v Council of the Metropolitan Borough of Poplar (No 1) [1922] 1 KB 72. By these cases, counsel tried to establish that once section 16 (1) of PNDCL 284 prescribed that the validity of an election to Parliament can only be challenged by petition brought under Part IV of that Law, judicial review, or the prerogative writs of certiorari and mandamus cannot avail the applicant.

The summary of what the cases cited above portray is that where a statute creating a duty or obligation has prescribed a forum of remedy for a breach of that duty then, as a general rule, the court will not allow any other remedy to be pursued. There has been developments in the law that created exceptions to the rule. Glidewell LJ in the case of Ex parte Waldron [1986] QB 824 at 852, CA held that some of the questions a court should take into account when deciding whether to grant relief by way of judicial review when an alternative remedy is available are:

“Whether the alternative statutory remedy will resolve the question at issue fully and directly; whether the statutory procedure would be quicker, or slower, than procedure by way of judicial review; whether the matter depends on some particular or technical knowledge which is more readily available to the alternative appellate body … “

Stuart-Smith LJ in R v Inland Revenue Commissioner: Ex parte Mead [1993] 1 All 772 at 783 has this to say:

“ … I cannot see why, if this court has jurisdiction to quash an executive discretion on well-recognised principles of

[p.954] of [1997-98] 1 GLR 938 judicial review, the fact that there is an alternative remedy in respect of some matters, ie abuse of process and inadequate evidence to justify trial or conviction, should prevent direct access to this court if those remedies do not cover the whole ambit of the jurisdiction in judicial review. If there is a gap the litigant should be able to avail himself of it.”

Even if there were an alternative statutory remedy, it is a well established principle in modern case law that where a public officer is entrusted with a public duty the performance of which affects the rights of subjects, he carries the duty to act fairly and justly in accordance with the statute. If he fails to carry out this duty, the existence of the statutory remedy is no bar to an application for certiorari and mandamus in the High Court, unless the jurisdiction is expressly taken away by statute: see the cases of R v Paddington Valuation Officer; Ex parte Peachey Property Corporation Ltd [1965] 2 All ER 836, CA and Leech v Parkhurst Prison Deputy Governor [1988] 1 All ER 485. The applicants in the Ex parte Peachey Property Corporation Ltd case (supra) applied to the High Court to have a valuation list which they think was prepared on a wrong footing and therefore has affected the rates of their properties quashed and an order of mandamus to be issued to compel the respondent to make a new list. The Local Government Act, 1948 provides a statutory remedy to the applicant. Lord Denning MR held that if the applicants were attacking the valuation list and contend that it is invalid then they are not confined to the statutory remedy. He said at 840:

“I am, therefore, of opinion that the existence of the statutory remedy is no bar to this application. The case falls within the general principle that the jurisdiction of the High Court is not to be taken away without express words; and this applies both to the remedies by certiorari and mandamus.”

The text book writer Clive Lewis in his book Judicial Remedies in Public Law, at p 309 says: “The courts have in the past held that the existence of an alternative statutory remedy impliedly exclude the inherent supervisory jurisdiction of the court. An individual could not

[p.955] of [1997-98] 1 GLR 938 therefore seek the prerogative remedies to control an abuse of power, but was restricted to using the statutory remedy. This approach no longer represents the current approach of the courts to alternative remedies. The existence of an alternative remedy does not oust the jurisdiction of the court to grant judicial review, although it is relevant to the discretion of the court to grant leave or relief.”

Society is dynamic and so is the law. Hence from the current English decisions and modern text writers referred to above, it is obvious that the authorities cited by learned counsel for the second respondent are of the past and no longer hold the current view of the law on this issue. It will therefore not be right to say now that statute has provided the applicant with a remedy and therefore he cannot come to court by the prerogative writs. PNDCL 284 may be invoked to challenge an election result when an applicant’s case falls within section 20(1) of PNDCL 284.

I will demonstrate presently that the current position of the law on alternative remedies has been embraced by our new constitutional order, to wit the Constitution, 1992. The Electoral Commission is a constitutional body that performs administrative functions described under article 45 of the Constitution, 1992. Article 46 of the Constitution, 1992 provides that:

“46. Except as provided in this Constitution or in any other law not inconsistent with this Constitution, in the performance of its functions, the Electoral Commission, shall not be subject to the direction or control of any person or authority.”

However, article 295(8) of the Constitution, 1992 says:

“(8) No provision of this Constitution or of any other law to the effect that a person or authority shall not be subject to the direction or control of any other person or authority in the performance of any functions under this Constitution or that law, shall preclude a court from exercising jurisdiction in relation to any question whether that person or authority has performed those functions in accordance with this Constitution or the law.”

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(The emphasis is mine.) Although in the face of this article, no provision has been specified as to how the court is to exercise jurisdiction over constitutional bodies like the first respondent and determine any question whether they have performed their functions in accordance with the Constitution or the law, the Supreme Court has had the privilege to interpret this article for future guidance of all. In the case of Ghana Bar Association v Attorney-General [1995-96] 1 GLR 598 at 640, SC Kpegah JSC delivering the leading judgment of the court said as follows:

“In analysing the language of article 295(8) of the Constitution, 1992, I have no doubt in my mind that the said clause is reiterating the courts’ power to review administrative actions, rather than giving the judiciary sweeping powers to wander to the dormain of other branches of government to scrutinise matters specifically committed to them.”

Again article 23 of the Constitution, 1992 (an article that falls under chapter five of the Constitution, a chapter that deals with the fundamental human rights and freedoms) provides that:

“23. Administrative bodies and administrative officials shall act fairly and reasonably and comply with the requirements imposed on them by law and persons aggrieved by the exercise of such acts and decisions shall have the right to seek redress before a court or other tribunal.”

The applicant in exercising his right to participate in political activities in his constituency first as a voter in the Ayawaso West-Wuogon Constituency and as a parliamentary candidate of the said constituency, is seeking redress in this court based on grounds that the Electoral Commission in exercising its functions in conducting the 1996 elections in his constituency, did not act fairly and reasonably, in that in two of the polling stations in the Ayawaso West-Wuogon Constituency the votes cast for the applicant were wrongly and erroneously credited to two other candidates while the votes cast for these candidates were wrongly credited to him thereby “short-changing” him and depriving him of some 329 votes. The applicant further complains that the Electoral Com-

[p.957] of [1997-98] 1 GLR 938 mission also failed to comply with the requirements imposed on it by regulation 41 of CI 15 in that it failed to add the results from one polling station, No C060701A, before declaring the results of the constituency. The sum total of the applicant’s case as can be seen from his application and the submissions of learned counsel, is that as a citizen of Ghana he was entitled to stand for elections and be elected to Parliament but has been denied that right by the act of the first respondent who did not act fairly and reasonably and also did not comply with the law. In effect the applicant has brought himself under articles 21(3), 23 and 295(8) of the Constitution, 1992.

Article 33 of the Constitution, 1992 gives the courts sweeping powers to protect such rights. Article 33 (1) and (2) provides:

“33. (1) Where a person alleges that a provision of this Constitution on the fundamental human rights and freedoms has been, or is being or is likely to be contravened in relation to him, then, without prejudice to any other action that is lawfully available, that person may apply to the High Court for redress.

(2) The High Court may, under clause (1) of this article, issue such directions or orders or writs including writs or orders in the nature of habeas corpus, certiorari, mandamus, prohibition and quo warranto as it may consider appropriate for the purposes of enforcing or securing the enforcement of any of the provisions on the fundamental human rights and freedoms to the protection of which the person concerned is entitled.”

(The emphasis is mine.) The phrase “without prejudice to any other action that is lawfully available” in article 33(1) of the Constitution, 1992 implies that even if an alternative remedy by way of either an appeal or petition is available to a person under any law, that person may still come to the High Court to seek the judicial review remedies of habeas corpus, certiorari, mandamus, prohibition and quo warranto. Article 1 (2) of the Constitution, 1992 says that the Constitution is the supreme law of the land. It precedes any other law including PNDCL 284 which was passed on 24 July 1992, about six months before the Constitution, 1992

[p.958] of [1997-98] 1 GLR 938 came into effect. I have said earlier in this ruling that PNDCL 284 is inapplicable to the applicant’s case. But assuming I am in error in coming to that conclusion, the Constitution, 1992 by article 33(1) has put the matter to rest by granting judicial review remedies even if the applicant was obligated by PNDCL 284 to seek relief for non-compliance with CI 15 only by petition. Either way, the arguments advanced in this preliminary objection fails and I have no choice but to overrule it. The preliminary objections are hereby overruled.

Ruling on the substantive case

I will now consider the submissions on the substantive matter. Counsel for the applicant submitted to the court that the application before the court is invoking the jurisdiction of the High Court under articles 23, 33, and 141 of the Constitution, 1992. According to counsel the Electoral Commission in exercising its duties is subject to judicial review remedies such as certiorari to quash decisions made by it in purported exercise of its statutory functions. The applicant, it was submitted, is not making any complaints under PNDCL 284 but his complaint is about non-compliance with CI 15. Counsel argued that CI 15 was not made under PNDCL 284 or any existing laws. It was made under article 51 of the Constitution, 1992. Regulation 11 of CI 15, according to counsel, was not complied with by the Electoral Commission. The publication in the Gazette by the Electoral Commission stating the name of the person elected and the total number of votes cast for each candidate, according to counsel, is subject to a condition precedent. If it can be demonstrated that in any particular case the Electoral Commission had published in a Gazette notice the name of a person allegedly elected and the total number of votes cast was recorded without complying with the duties cast on it by CI 15, then the publication of the notice, in counsel’s view, is void and unlawful and ought to be set aside and the most effective way of setting it aside is by certiorari. Counsel further argued that when the notice is set aside as void, this will mean no valid results had been declared for that constituency. The court, therefore, under those circumstances, has the duty to order the public authority to do what it ought to do. Counsel then submitted that no court has adjudicated on the

[p.959] of [1997-98] 1 GLR 938 legality of the procedure followed by the Electoral Commission in publishing the results of the Ayawaso West-Wuogon Constituency and this issue is not an issue on appeal. Counsel argued that the law has advanced and the court does not try to categorise acts as judicial or quasi-judicial before it intervenes by way of certiorari; the court only looks at the substance of the application. Counsel made references to the following text books: Wade & Bradley, Constitutional and Administrative Law (10th ed), p 606; and de Smith, Wolfe & Joel, Judicial Review of Administrative Actions (5th ed), p 702.

Counsel for the first respondent, Mr J B Quashie-Idun, in his submission said that the first respondent as a commission has made an administrative mistake and they have demonstrated in exhibit GIA5 how the mistake was made. However, in his view, the Electoral Commission having published the result has no power to correct it. Correction, according to him, is left to the general provisions of the law. Counsel argued that certiorari lies in acts done ultra vires. The act the applicant is complaining of is an administrative error and cannot be described as ultra vires. Certiorari therefore, in the view of counsel, is not the proper procedure to follow. It is counsel’s further argument that certiorari will lie where there is an error of law apparent on the face of the record. Certiorari will not lie to quash an error of facts unless that error goes to the jurisdiction. Counsel further submitted that first, the Electoral Commission is not holding anything in its hands to be brought to the court to be quashed; secondly, it has not come to any decision; and thirdly, the applicant should not be allowed to pursue parallel proceedings against the first respondent. Counsel finally submitted forcefully that since the applicant has an appeal pending in an electoral petition, if the application is allowed, it will open the floodgates for the commission to be inundated with similar applications from all the 200 constituencies in this nation.

The second respondent’s submission is not any different from his submission on the preliminary objections he raised. He submitted further that certiorari applies only in three instances:

(a) where there is a breach of natural justices;

(b) where there is an error of law apparent on the face of the records; and

[p.960] of [1997-98] 1 GLR 938

(c) where there is excess or lack of jurisdiction.

According to counsel, none of these circumstances exist in the applicant’s case and therefore certiorari cannot lie.

The main ground for the application is non-compliance with the provisions of CI 15 which was made pursuant to article 51 of the Constitution, 1992. Regulation 37 of CI 15 prescribes the mandatory procedure to be followed by the Electoral Commission in declaring results in a polling station immediately after the close of polls. Regulation 37(1) of CI 15 states as follows:

“37. (1) Immediately after the close of the poll the presiding officer shall in the presence of the candidates or their representatives and counting agents—

(a) open each ballot box, take out all the ballot papers in the box,

(b) proceed to count the ballot papers at the polling stations, and

(c) record the total number of votes cast in favour of each candidate.”

(The emphasis is mine.)

Section 27 of the Interpretation Act, 1960 (CA 4) explains how “shall” should be construed. It says: “In an enactment made after the passing of this Act, ‘shall’ shall be construed as imperative.” The use of the word “shall” in regulation 37 (1) of CI 15 is a command. It means the duties imposed on the presiding officer who is an officer of the Electoral Commission as stated above are mandatory. Regulation 37 (1) of CI 15 imposes a mandatory duty on the presiding officer to record the total number of votes cast in favour of each candidate. In my view, “total” here means the “correct total” number of votes cast for each candidate and not any figure at the whims and pleasure of the officer. Any attempt to defend the recording of any other figure apart from the correct total number of votes would imply a discretion which sins against the mandatory provisions of the law. Regulation 41 of CI 15 also prescribes the steps the Electoral Commission is obligated by law to take in declaring and publishing results of a contested election. Again the duties imposed on the Electoral Commission or its

[p.961] of [1997-98] 1 GLR 938 agents and officers under this regulation are mandatory. The word shall is the operative word here. Regulation 41 of CI 15 says:

“41. Subject to regulation 40 of these Regulations, immediately after the results of the poll for all the stations in his constituency have been given to him, the returning officer shall in the presence of the candidates or their representatives or not more than two counting agents appointed by each candidate:

(a) assemble the results from the polling stations without recounting the ballots in the ballot boxes, except where there is a challenge by a candidate or counting agent in respect of a specific ballot box;

(b) give public notice of the total number of votes cast for each candidate;

(c) publicly declare to be elected in a Parliamentary election the candidate to whom most votes have been given;

(d) endorse on the writ the name of the person elected; and (e) forward to the Commission the endorsed writ and a note of the total number of votes cast for each candidate.”

(The emphasis is mine.)

My interpretation of regulation 41 (1)(a) and (b) of CI 15 is that the returning officer who is an officer of the Electoral Commission is mandatorily required to assemble all the results from all the polling stations and not some of the results from some of the polling stations and give public notice of the correct total number of votes cast for each candidate and not just any number of votes. There is no discretion whatsoever in performing this function imposed by law. It is my view therefore that it is only when regulation 41(a) and (b) above have been correctly complied with that the steps in regulation 41 (c), (d) and (e) could be taken, ie publicly declaring to be elected the candidate to whom the most votes have been given; endorse the person elected on a writ; and forward same to the commission.

[p.962] of [1997-98] 1 GLR 938 Regulation 41(2) of CI 15 mandatorily requires the Electoral Commission to publish in the Gazette a “notice stating the name of the person elected and the total number of votes cast for each candidate and inform the Clerk to Parliament soon after that of the name of the candidate elected.” The actual name of the candidate rightly elected and the correct total number of votes cast for each candidate can only be arrived at under regulation 41(2) after regulation 41(1)(a),(b),(c),(d) and (e) have been fully complied with. Where the Electoral Commission fails to comply with or commits any omission in respect to the above mentioned regulations, that, in my view, would amount to non-compliance with the law.

By Exhibit GIA5, a letter dated 31 January 1997 signed by the Deputy Chairman of the Electoral Commission, the first respondent admits that regulations 37(1) and 41 of CI 15 were not complied with. I will quote portions of GIA5, the letter from the Electoral Commission admitting their errors, for clarity and correct appreciation of the point I am making. Exhibit GIA5 dated 31 January 1997 reads in part as follows:

“The election officers in the Ayawaso West-Wuogon Constituency committed administrative errors which the plaintiff complains about. A careful study of the polling station results filed by the presiding officers and the collation of results at the constituency centre reveals a lot of anomalies. In polling stations C060713 and C060715 which form the basis of the plaintiff’s petition the presiding officers admit entering the votes obtained by the plaintiff in favour of the PCP and PNC candidates as stated by the plaintiff. The wrong information was given to the returning officer.

There were other wrong entries on the returning officer’s collation sheet. It also came out that results from polling station C060701A was not added to the results.”

The Deputy Chairman (Operational) of the Electoral Commission, Mr David Adeenze Kangah, has admitted in paragraph (3) of his affidavit filed on 14 July 1997 that he signed exhibit GIA5 stating the first respondent’s finding on the matter. The defence, however, put up by the respondents in their affidavits is that exhibit GIA5

[p.963] of [1997-98] 1 GLR 938 is privileged as between client and lawyer and cannot be relied on by a third person. This defence, however, seemed to have been abandoned since counsel for the respondent did not make any reference to it in their viva voce and written submissions before this court. However, since the defence appears in their affidavits and appears to be a legal point I intend to deal briefly with it.

J Ofori-Boateng in his book, The Ghana Law of Evidence, at p 174 defines privilege as a right to refuse to disclose a fact, or to prevent others from doing so. A privilege may permit a party to decline to answer interrogatories or disclose a document, prior to trial. Under privilege, says the learned author, a witness may also refuse to answer a question, or to produce a thing or a document as evidence. The law dealing with lawyer-client privilege can be found in section 100(1) of the Evidence Decree, 1975 (NRCD 323). Section 100(1)(a) of NRCD 323 defines a “client” for the purposes of lawyer-client privilege as: “a person, including a public entity, association or body corporate, who directly or through an authorised representative seeks professional legal services from a lawyer.” On confidential communications, section 100(1) (d) says:

“(d) a communication is ‘confidential’ if not intended to be disclosed, and made in a manner reasonably calculated not to disclose its contents, to third persons other than those to whom disclosure is in furtherance of the client’s interest in seeking professional legal services or those reasonably necessary for the transmission of the communication.”

(The emphasis is mine.) Ofori-Boateng (supra) at p 177 explains that the expression “seek professional legal services” in the definition must include the first steps of discussing with the lawyer the possibility of retaining him for professional services, the fees for such retainership, and the general nature of the legal services which would be involved.

The Electoral Commission, ie the first respondent is a constitutional body charged with the responsibility of conducting public elections in Ghana. Following a complaint by the applicant in connection with the Ayawaso West-Wuogon Constituency

[p.964] of [1997-98] 1 GLR 938 elections and a subsequent court suit, the commission wrote exhibit GIA5 to the Attorney-General who is the chief legal adviser to the Government of Ghana, stating the fact of their findings on the matter. The investigations and findings of a body like the first respondent after an election is of such public importance that it cannot under any circumstances be kept away from the general public. Besides, the first respondent is not a client within the meaning of section 100(1)(a) of NRCD 323 because its relationship with the Attorney-General is not one in which it sought professional legal services from a lawyer. The communication itself is not confidential since it was not made in furtherance of the client’s interest in seeking professional legal services. It is my view that exhibit GIA5 which is in the hands of the public now, is not privileged within the meaning of the law—the Attorney-General being under a duty to make public the findings of the constitutional body. The authorship of exhibit GIA5 is not in doubt and, as I have held, its content is an admission by the first respondent that it did not comply with regulation 37(1) and 41 of CI 15. The applicant who is a citizen of Ghana and who by the provisions of article 21(3) of the Constitution, 1992 has the right to contest a parliamentary election and who, indeed, contested the parliamentary election of the Ayawaso West-Wuogon Constituency says that he is aggrieved by the way the first respondent went about the functions imposed on them by law and is seeking redress from this Court.

Article 23 of the Constitution, 1992 which I have referred to earlier in this ruling, mandates administrative bodies and administrative officials to act fairly and reasonably and comply with the requirements imposed on them by law. A person aggrieved by the exercise of acts and decisions of any such administrative body or officials can seek redress from the court. The duty to act fairly implies an obligation to act justifiably, properly, legitimately, rightfully. Webster’s Third New International Dictionary (Unabridged), Vol I, p 816 explains fairly as: “In a just and lawful manner, without fraud, injury or unfair advantage; without bias or distortion.” It is a duty to act impartially, candidly, accurately and objectively. In the Webster’s Dictionary, Vol II, at p 1892 “reasonably” is defined as: “Being in agreement with right thinking or right judgement—not conflicting with reason, not

[p.965] of [1997-98] 1 GLR 938 absurd, not ridiculous.” In effect, a duty to act reasonably is one to act sensibly and possessing good, sound and well balanced judgment. Can one therefore say that in failing to comply with the requirements of regulation 37(1) and 41 of CI 15 the first respondent has acted accurately, rightfully and in a just and lawful manner? I do not think so. Further can it be said that the first respondent acted with the right judgment imposed by law? My answer to this is also in the negative.

In the case of Preston v Inland Revenue Commissioners [1985] 2 All ER 327 at 329 Lord Scarman said: “I must make clear my view that the principle of fairness has an important place in the law of judicial review, and that in an appropriate case, it is a ground on which the court can intervene to quash a decision made by a public officer or authority in purported exercise of a power conferred by law.”

Also in HT v Price Commission [1976] 1 CR 170 Lord Denning at 85-186 stated that: “It has been said, I know, that a public body, which is entrusted by Parliament with the exercise of powers for the public good, cannot fetter itself in the exercise of them. It cannot be estopped from doing its public duty. But that is subject to the qualification that it must not misuse its powers; and it is a misuse of power for it to act unfairly or unjustly towards a private citizen where there is no overriding public interest to warrant it.”

Lord Scarman LJ in the same case at 189 also said:

“Agencies such as the Price Commission, must act fairly. If they do not, the High Court may intervene either by prerogative order to prohibit, quash or direct a determination as may be appropriate, or, as is sought in this case by declaring the meaning of the statute and the duty of the agency … It is a common place of modern law that such bodies must act fairly … It is not really surprising that a code must be implemented fairly, and that the courts have powers to redress unfairness.”

[p.966] of [1997-98] 1 GLR 938

I have taken great pains to go at length to demonstrate that the Electoral Commission did not act fairly and reasonably to the candidates that contested the parliamentary elections in the Ayawaso West-Wuogon Constituency in December 1996 in that the votes recorded for each candidate were not the correct total number of votes cast in favour of each candidate; that is a direct breach of regulation 37(1) of CI 15. Results from all the polling stations were not assembled before notice of the total number of votes cast for each candidate was given. It means such a notice did not reflect the correct total number of votes cast for each candidate, thereby breaching regulation 41(1)(a) and (b) of CI 15. The applicant’s presence in this court is to ask that the result declared and published in breach of the laws narrated above by the Electoral Commission, be declared unlawful and void and be quashed. Learned counsel for the respondents have submitted that the acts of the Electoral Commission are not ultra vires, are not in breach of natural justice and are not errors of law, therefore judicial review remedies like certiorari would not lie.

I will first of all like to comment on the cases relied on by learned counsel for the respondents to support their submissions. These cases are: Ex parte Fry [1954] 2 All E R 118; R v Metropolitan Police Commissioner’s; Ex parte Parker [1954] 1 WLR 781; Buckoke v Greater London Council [1971] 1 Ch; and R v Statutory Visitors to St Lawrence Hospital; Ex parte Pritchard [1953] 2 All E R 766. I have examined these cases in detail and have found their ratio decidendi to be completely different from the case in issue. These cases dealt with matters that involve exercise of disciplinary powers. The English courts at that time held that the bodies concerned were not acting in a judicial or quasi-judicial capacity so certiorari will not lie. It is noteworthy, however, that recent decisions of the same English courts in R v Hull Prison Board of Visitors; Ex parte Germaine [1978] 2 All ER 198, QBD; R v Hull Prison Board of Visitors; Ex parte Germaine; R v Wandsworth Prison Board of Visitors; Ex parte Rosa [1979] 1 All ER 701, CA; and Leech v Parkhurst Prison Deputy Governor [1988] 1 All ER 488 have disapproved the Ex Parte Fry (supra) and Ex Parte Parker (supra) cases and are held not to be good law any longer. In the case of R v Hull Prison Board of Visitors; Ex parte St Germaine etc Lord Megaw LJ has this to say at 710:

[p.967] of [1997-98] 1 GLR 938 “The principal authority which, as he himself said, moved Lord Widgery CJ was a decision of the Divisional Court, presided over by Lord Goddard CJ, in Ex Parte Fry. With all respect, I think the criticism made before us of the judgment of Lord Goddard CJ in that case is well founded, at least as regards dicta there in … It is right also to emphasise that the decision of the Divisional Court in Ex Parte Fry, so far as it dealt with the question of jurisdiction, as distinct from discretion, appears to have been, at least partly, founded on an earlier decision of that court. R v Metropolitan Police Commissioner, Ex Parte Parker. In my view, it would be unsafe to treat that decision as still being good law, having regard both to what was said in the speeches in Ridge v Baldwin … So far as Ex Parte Fry itself is concerned, its authority, in relation to the question of jurisdiction, is at any rate rendered doubtful by the observations of Lord Denning MR, obiter, in Buckoke v Greater London Council”

In the same case at 716-717 Shaw LJ stated:

“Now the rights of a citizen, however circumscribed by a penal sentence or otherwise, must always be the concern of the courts unless their jurisdiction is clearly excluded by some statutory provision. The courts are in general the ultimate custodians of the rights and liberties of the subject whatever his status and however attenuated those rights and liberties may be as the result of some punitive or other process … Apart from statute or specific contract there can be no external fetters on the exercise by the court of its jurisdiction to control the proceedings of bodies or individuals who have the power to deal with the rights or liberties or status of a subject. In my view the only necessary restraint on the exercise of this supervisory and salutary jurisdiction is an internal one, namely the discretion of the court from whom relief is sought.”

In the case of Meade v Haringey London Borough Council [1979] 1 WLR 637 Lord Denning MR held that the prerogative writs will be available “where a public authority failed to perform a statutory

[p.968] of [1997-98] 1 GLR 938 duty by commission or omission in such a way as would hinder the policy of the act.” It is worth quoting Lord Diplock at this stage in the case of Council of Civil Service v Minister for the Civil Service [1985] AC 374 at 410, HL to show the present state of the case law on judicial review:

“Judicial review has I think developed to a stage today when . . . one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I will call ‘illegality,’ the second ‘irrationality’ and the third ‘procedural impropriety’. That is not to say that further development on a case by case basis may not in course of time add further grounds …

By ‘illegality’ as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, whom the judicial power of the state is exercisable.

By ‘irrationality’ I mean what can now be succinctly referred to ‘Wednesbury unreasonableness’ … It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who has applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system …

I have described the third head as ‘procedural impropriety’ rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice.”

[p.969] of [1997-98] 1 GLR 938 de Smith, Woolf and Jowel in the text book Judicial Review of Administrative Action, p 251 also emphasise the modern trend of the law on judicial review and said:

“The foundation for judicial review should no longer be regarded as ultra vires . . . upon application for judicial review it is no longer of any significance whether the source of alleged invalidity of administrative action is based upon an excess of jurisdiction or error of law within jurisdiction . . . All power can be appropriately reviewed today under what might be described as the principle of lawful or legitimate administration.”

The text book writers referred to the three grounds of judicial review as laid down by Lord Diplock in the G C H Q case quoted supra and concluded that the three grounds legality, procedural propriety, and rationality “form a firm foundation upon which to review the public function of modern administration and do not depend upon the limited notion of jurisdiction or vires in its narrow sense.”

Lately Fenwick & Phillipson in their 1997 edition of the Source book on Public Law, at p 755 has restated the modern position as follows:

“When dealing with the effects of failure to undertake statutory consultation, the courts have tended to classify such requirements as either mandatory or directory. Breach of a mandatory requirement will render the decision or act in question invalid.”

Lord Wilberforce in the House of Lord case of Inland Revenue Commissioner v National Federation of Self Employed and Small Businesses Ltd [1981] 2 All ER 93 at 98 expounded further the current trend in the law on prerogative writs as follows:

“From this summary analysis it is clear that the Commissioners of Inland Revenue are not immune from the process of judicial review. They are an administrative body with statutory duties, which the courts in principle can supervise . . . It must follow from these cases and from principle that

[p.970] of [1997-98] 1 GLR 938 a tax payer would not be excluded from seeking judicial review if he could show that the revenue had either failed in their statutory duty toward him or had been guilty of some action which was an abuse of their powers or outside their powers altogether.”

In Ghana our courts following previous English decisions had held the view that judicial review remedies by way of the prerogative writs could only be sought when there is a breach of the rules of natural justice, error of the law on the face of the records and lack or excess of jurisdiction. Our courts also held that judicial review remedies will lie against inferior courts or bodies or persons which have to act judicially, but they do not lie against purely administrative acts: see the judgment of Archer JA (as he then was) in Republic v Commissioner of Income Tax; Ex parte Maatschappildesic(1) Fijnhouthandedsic(2) NV (Fynhout) [1971] 1 GLR 213 at 216 and the full bench of the Court of Appeal in the same case reported in [1974] 1 GLR 283 at 300. The development of these prerogative remedies prompted Cecilia Koranteng Addow J in the case of Republic v Minister for the Interior; Ex parte Bombelli [1984] 1 GLR 204 at 211 to break new grounds in this area of our law when she stated:

“In the exercise of statutory powers directly affecting the interests of individuals it is nearly always reviewable at the instance of the person having appropriate locus standi. The power of the court to supervise the exercise of powers conferred by statute is based on the fundamental principle inherent throughout the English legal system which we have received in this country. These powers can be validly exercised only within their true confines. It follows that where the power exercised comes within the power conferred by statute but is contravened because some condition set by the statute is ignored, the court may intervene and review the decision thus made. The same will happen if a mandatory procedure laid down by the statute is not followed. This is because where the law required that certain steps are to be taken, it is to be implied that the action is valid only if they are duly taken.”

[p.971] of [1997-98] 1 GLR 938

A new era has dawned and it is clear from the current judicial decisions and text writers as well as the provisions of article 23, 33 and 295(8) of the Constitution, 1992 that apart from inferior courts and bodies or persons acting judicially, judicial review remedies in the form of certiorari, mandamus and prohibition will lie against administrative bodies and officials. The remedies are also not limited to the traditional three-fold grounds, namely breach of natural justice, error of law apparent on the face of the record, and lack of or excess of jurisdiction. The prerogative remedies will now lie against persons or bodies who fail to act fairly and reasonably, or fail to observe procedural rules or are guilty of non-compliance with the mandatory requirements of the law. The list here is not exhaustive.

In the same way the submission by counsel for the first respondent that the mistakes admitted by the Electoral Commission in exhibit GIA5 is a mistake of fact and not an error of law and therefore cannot be remedied by judicial review is no longer the state of the law. Counsel for the first respondent drew the court’s attention to the fact that the error admitted by the commission is a mistake of fact and not law and so not reviewable. It has been held that where there is a material mistake of fact and that fact is relevant and the mistake is due to an administrative deficiency which indicates a failure on the part of the decision maker to fulfil his legal duties there will be judicial intervention: see Mason v Secretary of State for the Environment and Bromsgrove District Council [1984] 1 PL 332 and Hollis v Secretary of State for Environment [1989] 47 P&CR 351.

There is no doubt therefore that the current view in administrative law is that a mistake of fact can act as a vitiating factor precipitating judicial intervention. This according to Fenwick and Phillipson, Source Book on Public Law, p 749 will apply only where there has been a material or, as it might more accurately be called, a cardinal mistake of fact; that is, where the administrator has made a decision which he would or might not have made but for the error. It is unrealistic to expect that an administrative decision-maker should get every fact right. A court is going to be most prepared to intervene where the mistake is not only a material one, but is due to an administrative deficiency which indicates a failure on the part of the decision-maker to fulfil his

[p.972] of [1997-98] 1 GLR 938 legal duties. This court therefore has the jurisdiction to grant the application before it once it has been established that the public body in question, ie the Electoral Commission failed to comply with a mandatory statutory duty conferred upon it and that failure has rendered the act or decision invalid.

There are two other submissions made by the respondents which I wish now to consider. The first is that the Electoral Commission did not take a decision. The only time that a decision is taken by an electoral officer is when he rejects a ballot paper under regulation 38 of CI 15. Certiorari can lie only to quash decisions. Counsel for the second respondent further submitted that regulation 39 of CI 15 provides that the decision of the returning officer on any question arising in respect of a ballot paper is subject to adjudication or review on an election petition to the High Court. Regulation 38 of CI 15 prescribes what a presiding officer should do in respect of rejected ballot papers. The position with regulations 38 and 39 of CI 15 is this: Where a presiding officer decides to mark a ballot paper as rejected and an objection is made to that decision by a candidate or counting agent, regulation 38(4) of CI 15 provides that the decision of the presiding officer rejecting a ballot paper is subject to adjudication or review on an election petition to the High Court. Regulation 39 specifies the particular instance where a petition to the High Court may be made, ie where a ballot paper is rejected by a presiding officer and a candidate or counting agent objects to that decision. The issue before this court is not related to a rejected ballot paper.

On the submission that the Electoral Commission did not take a decision, counsel argued that for a body to take a decision against which an order of certiorari will lie, that body must be a body that hears submissions and evidence and come to judicial decisions in approximately the way that a court must do. He cited the case of Commissioner of Income Tax v Maatshappinjsic(3) de Fijuhenthandelsic(4) NV (Fynhout) (supra) in which the Court of Appeal held that certiorari will lie against a person who had to act judicially but not against purely administrative acts. Counsel further cited the case of Republic v President; National House of Chiefs; Ex parte Akyeamfour II [1982-83] GLR 10, CA. I have dealt with the ratios in these cases earlier in this ruling but suffice it to say that the scope of certiorari has broadened ever since the

[p.973] of [1997-98] 1 GLR 938 above cases counsel relied on were decided. These decisions are no longer the law. The English case law has developed and widened the scope of certiorari. It is also interesting to note that the English cases relied on as authority for the decisions reached in these cases cited by learned counsel for the second respondent have been overruled. For example the case of R v Electricity Commissioners; Ex parte London Electricity Committee Co Ltd [1924] 1 KB 171 at 205 relied on in deciding Ex parte Akyeamfour (supra) has long been overruled in Leech v Parkhurst Prison Deputy Governor (supra). It was held per Lord Oliver in that case at 505 that:

“susceptibility of and decision to the supervisory jurisdiction of the court does not rest on some fancied distinction between decisions which are ‘administrative’ and decisions which are ‘judicial or quasi-judicial.’ The principles have been reviewed in the authoritative exegesis of Lord Diplock in O’Reilly v Mackman [1982] 3 All ER 1124.”

The text book writer Clive Lewis in his book Judicial Remedies in Public Law, p 145 has this to say on the scope of certiorari:

“The major obstacle to the development of the prerogative remedies was the dictum of Atkin L J in the Electricity Commissioner’s case, that the supervisory jurisdiction of the courts only extended to bodies having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially. This dictum no longer represents the law, if it ever did, and is seriously misleading. It is now clear that the judicial review jurisdiction and prerogative remedies are available against anybody execising public law powers.”

See the cases of R v General Medical Council; Ex parte Colman [1990] 1 All ER 489; R v Secretary of State for Foreign and Commonwealth Affairs; Ex parte Everett [1989] QB 811; and R v Norfolk County Council [1989] QB 619.

It was once the law that certiorari only lay against determinations or decisions and not against non-binding acts. This was the decision in R v Statutory Visitors to St Lawrence’s Hospital;

[p.974] of [1997-98] 1 GLR 938

Ex parte Pritchard [1953] 1 WLR 1158. This however has been overruled: see the case of R v Agricultural Dwelling-House Advisory Committee for Bedfordshire etc; Ex parte Borough [1986] 19 HLR 367. The legal position by the decided cases now is that certiorari would establish that an illegality has occurred, and confirm that the report or circular should not be relied upon: see Judicial Remedies in Public Law, cited supra.

The application before me is asking this court to establish by certiorari that in the conduct of the parliamentary elections in the Ayawaso West-Wuogon Constituency by the Electoral Commission an illegality had occurred and that the report or the result declared and published in Gazette No 56 of 19 December 1996 should not be relied on. Learned counsel for the respondents’ submission that certiorari will only lie to quash a decision is no longer the law and is not tenable.

It has been argued by learned counsel for the first respondent that if this court grants the present application it will open the floodgates in the future for similar applications. Lord Denning in the case of Bradbury v London Borough of Enfield [1967] 3 All ER 434 at 441 has this to say on a similar submission in that case:

“I must say this; if a local authority does not fulfil the requirements of the Law, this court will see that it does fulfil them. It will not listen readily to suggestions of ‘chaos.’ The department of Education and the Council are subject to the rule of law and must comply with it, just like everyone else. Even if chaos should result, still the law must be obeyed.”

(The emphasis is mine.) The Electoral Commission having admitted that they failed to comply with the requirement of the law must be ordered to do so. The fear of similar applications being brought by others who may have similar grievances cannot be a ground for the court to refuse to exercise its discretion in applications for judicial review.

I will now consider the remedy of mandamus. This prerogative writ lies to compel an inferior tribunal or an administrative body to discharge a public duty which it had failed to discharge lawfully. The court in exercising its discretion to grant such a relief must take into consideration the following factors:

[p.975] of [1997-98] 1 GLR 938

(a) that the applicant has a substantial personal interest in the performance of that duty and was specially aggrieved by the non-performance of the duty; and

(b) the applicant must show that he has demanded performance of the duty and performance has been refused or ignored by the authority obliged to discharge the said duty.

See de Smith, Woolf and Jowell, Judicial Review of Administrative Action (5th ed), pp 634 and 700. According to Lord Scarman in Inland Revenue Commissioners v National Federation of Self Employed and Small Businesses Ltd (supra) at p 111:

“mandamus is the most elusive of the prerogative writs and orders. The nature of the interest an applicant must show, the nature of the duty which is available to enforce, and the persons or bodies to whom it may issue have varied from time to time in its development. It is, of course, a judicial remedy; it is equally clear that it is a remedy to compel performance of a public legal duty and that it is available only if the applicant shows a sufficient interest.”

I have already discussed the applicant’s interest in this matter and how that interest has been affected but it is worthwhile to restate here that the applicant was one of those candidates who stood for the 1996 parliamentary elections in the Ayawaso West-Wuogon Constituency. The Electoral Commission has admitted by exhibit GIA5 that they did not comply with regulation 41 of C15sic(5) in the performance of their duties in the said constituency. As a result, the second respondent instead of the applicant was declared elected in that constituency. By exhibit GIA4 the applicant has shown that he made a demand on the Electoral Commission to do what regulation 41 of CI 15 enjoins them to do but this was ignored. The applicant in my view has satisfied all the factors required for the courts discretion to be exercised in his favour.

In the case of R v Paddington Valuation Officer; Ex parte Peachey Property Corporation Ltd (supra) the applicants who were owners of a large block of flats in a metropolitan borough, applied for prerogative orders of mandamus or certiorari to compel the respondent valuation officer to carry out his statutory duties in

[p.976] of [1997-98] 1 GLR 938 relation to the preparation of a new valuation list or to quash the list, which had come into force. Lord Denning MR reading the judgment of the Court of Appeal said at p 841-842 as follows: “It is necessary to distinguish between two kinds of invalidity. The one kind is where the invalidity is so grave that the list is a nullity altogether. In which case there is no need for an order to quash it. It is automatically null and void without more ado. The other kind is when the invalidity does not make the list void altogether, but only voidable. In that case it stands until it is set aside. In the present case the valuation list, is not and never has been a nullity. At most the first respondent—acting within his jurisdiction-exercised that jurisdiction erroneously. That makes the list voidable and not void. It remains good until it is set aside . . . If the existing list has been compiled on the wrong footing, the court can order the first respondent to make a new list on the right footing. Once the new list is made and is ready to take effect, the court can quash the old list. The first respondent is a public officer entrusted with a public duty. He has legal authority or power to determine questions affecting the rights of subjects, namely, to assess the values of hereditaments. This power carries with it a duty to act ‘judicially’ which means, I think, fairly and justly in accordance with the statute. If he declines or fails to carry out the duty, he is amenable to mandamus; and the list itself is able to be quashed on certiorari.”

This dictum, in my view, is on all fours with the present application before me, and I do adopt the reasoning of the learned jurist and find that the first respondent as a constitutional body performing its administrative functions within the jurisdiction assigned to it by law, exercised that jurisdiction unfairly, unreasonably, erroneously and without recourse to the Constitution, 1992 and CI 15 by failing to record the correct number of votes scored by the candidates who contested the Ayawaso West-Wuogon Constituency parliamentary elections and also by failing to assemble all the results from all the polling stations before it

[p.977] of [1997-98] 1 GLR 938 declared elected the candidate to whom most votes had been cast and also before giving Gazette notification of the result.

I cannot end this ruling without expressing my regrets at an unfortunate incident which occurred at the initial stages of this case leading to the filing of three affidavits by the first respondent. When the Attorney-General’s Department assumed representation on behalf of the first respondent, the initial affidavit in opposition filed on 23 June 1997 and sworn to by one Kwame Damoah Agyemang denied the authorship of exhibit GIA5 by the commission. This prompted the deponent of the affidavit to write to the court stating that he swore to the affidavit unaware of the fact that their initial brief on exhibit GIA5 to the Attorney-General’s Department had been altered. Subsequently, two affidavits, one by David A Kanga and C K Kuwornu all dated 14 July 1997 were filed stating the fact that the commission wrote exhibit GIA5. Whatever the intention for denying the existence of exhibit GIA5 in the affidavit dated 23 June 1997, the State Attorneys who were then representing the first respondent cannot escape blame. State Attorneys, like practising lawyers, have a duty to fearlessly defend the interest of their clients, but in so doing they should resist all temptation to allow their personal opinions and feelings to affect that duty. As law officers, they are also officers of the court and are to be fair and candid to the court at all times and to divulge all such necessary information at their disposal which would assist the court in arriving at a just decision. This duty is even more pronounced in criminal cases where the liberty of the citizen is at stake.

In conclusion, I invoke the provisions of articles 23, 33 and 295 (8) of the Constitution, 1992 and do hereby grant the reliefs sought by the applicant. It is hereby ordered that the Electoral Commission, the first respondent, brings to this court for the purpose of being quashed and it is hereby quashed, the results declared by it on the 8 December 1996 of the elections held on 7 December 1996 in the Ayawaso West-Wuogon Constituency. I also order the Electoral Commission to bring to this court for the purpose of being quashed and it is hereby quashed the notice in Gazette No 56 of 19 December 1996 of the name of the candidate declared at the said parliamentary elections in the Ayawaso West-

[p.978] of [1997-98] 1 GLR 938

Wuogon Constituency. I further order the Electoral Commission to assemble, collect and collate the results of all polling stations and the correct total votes cast for each candidate who contested in the parliamentary elections at the Ayawaso West-Wuogon Constituency on 7 December 1996 without counting the ballot papers in compliance with CI 15, in the presence of the candidates or their agent and declare within seven days publicly the candidate to whom most votes were given. The Electoral Commission, the first respondent is further ordered within fourteen days from the date of this ruling to publish in the Gazette a notice stating the name of the person elected and the total number of votes cast for each candidate and to inform the Clerk of Parliament of the name of the candidate elected.

DECISION

Application granted.

LSNA.

Endnotes

1 (Popup – Footnote) sic same in original. 2 (Popup – Footnote) sic same in original. 3 (Popup – Footnote) sic same in original. 4 (Popup – Footnote) sic same in original. 5 (Popup – Footnote) sic same in original.