REPUBLIC vs. ELECTORAL COMMISSION AND ANOTHER; EX PARTE ADOTEY [1997-1998] 2 GLR 909

CASES REFERRED TO

(1) Commissioner of Income Tax v MaatschappUij de Fizjnhout handel NV (Fynhout) [1974] 1 GLR 283, CA (full bench).

(2) Overseas Aviation Engineering (GB) Ltd; Re [1963] Ch 24; [1962] 3 WLR 594; [1962] 3 All ER 12, CA.

APPLICATION for a stay of execution of a judgment of the High Court, Accra pending appeal. The facts are sufficiently set out in the ruling of Benin JA.

Samuel Cudjoe for the applicant.

Peter A Adjetey for the respondent.

Benin JA. This is an application to stay execution of the judgment of the High Court, Accra presided over by Dordzie J delivered on 15 December 1997. That judgment had been delivered in an application for prerogative orders of certiorari and mandamus mounted by the applicant-respondent herein (hereinafter referred to as the respondent). The reliefs sought were for orders of certiorari and mandamus directing the Electoral Commission, the first respondent herein, to bring up to the court to be quashed the results declared by it or its authorised agents on or about 8 December 1996 of the Ayawaso West-Wuogon Constituency Parliamentary Elections held on 7 December 1996, and also the declaration made by it of the said results in the said constituency in Gazette No 56 of 19 December 1996 and for an order compel hling the first respondent herein to assemble, collect and collate the results from all the 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 boxes and declare the candidate to whom the most votes were given at the said election and finally to publish in the Gazette a notice [p.913] of [1997-1998] 2 GLR 909 stating the name of the person elected and the total number of votes cast for each candidate in accordance with law.

The second respondent-applicant (hereinafter referred to as the applicant) opposed the said application on grounds contained in an affidavit filed on 20 June 1997 which may be summed up as follows:

“(i) that the application is misconceived and unmeritorious;

(ii) being an action to question an electoral result it could only be commenced in court by way of an election petition and not by prerogative writs;

(iii) having filed an election petition and lost same in court, the applicant who has appealed against that loss cannot seek the present remedies;

(iv) the application is a gross abuse of the court process and a deliberate attempt to harass the second respondent.”

The first respondent also opposed the application on the main legal ground that its actions in relation to election results could only be questioned by procedures laid down by section 16 of the Representation of the people Law, 1992 (PNDCL 284).

After hearing whatever arguments counsel had to offer, the trial judge upheld the application and made the following decisions and orders:

“… 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 8 December 1996 of the elections held on 7 December 1996 in the Ayawaso-West-Wuogon Constituency.

I 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-Wuogon Constituency.

I also 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

[p.914] of [1997-1998] 2 GLR 909 papers in compliance of the Public Elections Regulations, 1996 (CI 15) in the presence of the candidates or their agent and declare within seven (7) days publicly the candidate to whom most votes were given.

The Electoral Commission, the first respondent, is further ordered within fourteen (14) 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.”

Dissatisfied with this decision and the orders made pursuant thereto, the Electoral Commission and the applicant have appealed to this court. I shall henceforth concentrate on only the applicant since she has taken the further step of applying to stay execution of the judgment and orders made by the High Court.

The grounds of appeal have to be set out here because the bulk of the arguments in respect of this application cantered around them. They are:

“(a) The learned judge erred in law in granting certiorari and mandamus when there is an appeal filed by applicant in respect of the same matter.

(b) The learned judge erred in law in holding that certiorari and mandamus applied in respect of complaints under section 41 of CI 15.

(c) The learned judge erred in law in holding that PNDCL 284 did not apply to the application.”

Additional grounds were filed but these need not be set down here for the moment, at least.

These grounds of appeal were extensively canvassed in this application to show that there are serious legal questions raised in the appeal and to show that the appeal has a reasonable chance of success. I must state here and now that in view of the fact that the appeal raises several legal issues some of which have not received definite pronouncements in this court or the Supreme Court, I shall refrain from commenting on the reasonableness of their being upheld on appeal in this case, lest it should be misconstrued in some way. Suffice it to say that I will only comment on whether they are serious legal issues or otherwise.

First is the question whether certiorari lies against administrative bodies exercising purely administrative functions. The full

[p.915] of [1997-1998] 2 GLR 909 bench of the Court of Appeal has decided in the case of the Commissioner of Income Tax v Maatschappzij De Fzijnhouthandel N V (Fynhout) [1974] 1 GLR 283, CA (hereafter called simply as the Fynhout case) that certiorari did not lie against purely administrative acts. That decision standing by itself would be binding on the High Court. But the learned High Court judge did not feel bound by it for reasons which she gave on the record and which included reliance on article 23 of the Constitution, 1992. This article 23 provides:

“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 argument of counsel for the respondent herein is that article 23 imposed a constitutional obligation on administrative bodies to act fairly and reasonably and if they fail to do so their action or inaction for that matter could be called in question by prerogative writs. In effect the Fynhout (supra) decision has been superseded by at least article 23 of the Constitution, 1992. I believe this legal point is of grave importance to be determined by this court; also bearing in mind and taking into account recent developments in this area of administrative law in other common law jurisdictions.

There was also this point raised as to whether the right to stand for elections is a fundamental human right within the meaning of article 33 of the Constitution so as to give the High Court jurisdiction outside PNDCL 284 to determine such matter. Really this point was not seriously canvassed and I do not consider it a serious question of law for determination on appeal, for unless otherwise disqualified by law, every citizen of Ghana has a right to stand for elections.

On a more serious note, it was argued that since the respondent herein had commenced an election petition by virtue of section 16 of the PNDCL 284 and lost same and appealed against the loss which appeal is still pending before this court, the trial judgce ought not to have given him leave to commence the prerogative proceedings on notice. Indeed this argument is in three parts viz: (i) that by virtue of Order 59, r 3 of the High Court (Civil Procedure) Rules, 1954 (LN 140A) once an appeal was lodged leave should not be granted to commence prerogative proceedings

[p.916] of [1997-1998] 2 GLR 909 in the same matter; (ii) once the respondent had come under section 16 of PNDCL 284, he could not at the same time take any different proceedings to achieve the same result; (iii) that in matters of election, the only available remedy is by way of a petition under PNDCL 284. Counsel for the respondent readily answered all these points raised; and in my opinion they are serious legal points to be determined by this court. And more especially the question whether only PNDCL 284 is available to a person in the position of the respondent herein. Also important is whether if several options are available, recourse to the one does not foreclose his right to the other. In sum, my conclusion is that the appeal raises very important legal topics for the consideration of this court which will no doubt be beneficial to the democratic process in the country. This ground is accordingly accepted.

But as a discretionary remedy, the court has to be satisfied that some hardship would ensue if it is refused; and as an ancillary that it is beneficial to grant it. But before I embark upon any such consideration, I think it is necessary at this stage to decide whether (i) there is anything to stay, and (ii) whether the applicant against whom no order was made can validly apply to stay the court’s orders. On (i), I have already set out the orders made by the court below. They direct the Electoral Commission to do certain things. An order is executable if it is definite and/or certain and if the party against whom it is made can be compelled by any court process of execution to comply with it. For that reason the orders made in this case are executable in as much as they are enforceable at the instance of the successful party. I believe execution is only the process of enforcing or giving effect to the judgment and/or orders of the court: see Re Overseas Aviation Engineering (GB) Ltd [1962] 3 All ER 12 at 16, CA, per Lord Denning MR.

On (ii), it was argued that these orders were not directed at the applicant herein. That is true; but the consideration is not whether they are directed at the applicant herein but whether they affect her interest. As a party in the case the applicant had the undoubted right of appeal. And as a person who is primarily sought to be unseated as a member of Parliament should the orders of the court below adversely go against her, she is a party directly affected by the orders and is thus interested in how they are carried into effect. In my opinion therefore she is entitled to seek orders to stop the enforcement of the orders pending the hearing and determination

[p.917] of [1997-1998] 2 GLR 909 of the appeal. Indeed the applicant could even be described as a person aggrieved by the orders in so far as they have an adverse effect on her interest. She is not a mere busybody but somebody who has a genuine grievance because the orders made prejudi cially affected her interest as a person who considers herself duly elected at the polls. She has an interest in the result of the appeal and it is against the decision and these very orders that the appeal has been lodged. It is my view therefore that the applicant can seek to stay the judgment and orders.

I shall return to the question of hardship. But we have to remind ourselves that it is not the practice of the court to deprive successful litigants of the fruits of their litigation; hence to do so the court has to be satisfied of the real need or necessity for it. It is equally the court’s duty to ensure that a successful party on appeal will reap fully the fruits of the appeal with little or no difficulty at all, if possible. It is in the light of these considerations that I examine the question of hardship.

When we talk of hardship there is no particular meaning to be assigned to it in the sense that it is not possible to classify the manifold form that hardship may take, as the aspects of detriment are as diverse and varied as the exigencies of human affairs. And so too precedents may not be useful. It has to be examined in the context and circumstances of the application made and must be weighed between the contesting parties and decided upon as to which of them will suffer greater hardship if the order granting the stay was made or refused. Hardship may be physical or even mental; it could include negative reepercussions of every kind. It could comprehend any matter of appreciable detriment whether financial, personal or otherwise.

In her affidavit in support of the application the applicant deposed that as a member of Parliament irreparable hardship would be caused her if the ruling of the High Court is not stayed. She deposed that she undertakes duties in her constituency which are beneficial; she also serves on various committees in Parliament, and undertakes a lot of national assignments which will not be done if the stay is not granted. I think these matters spoken of as hardship really are matters which relate to the duties imposed on every member of Parliament, since they are required to serve on committees of Parliament and perform services to their constituents. Thus they are not pnecuhliar to the applicant.

[p.918] of [1997-1998] 2 GLR 909

Counsel for the applicant also argued that as a sitting member of Parliament, if she has to be kicked out and with all the attendant publicity before she is reinstated should the appeal succeed, a lot of embarrassment and inconvenience would have been caused to her. On the other hand, the respondent is not a member of Parliament so he can wait for his prospects in the future. Counsel for the respondent said nobody knows what the outcome of compliance with the court’s orders would be so the question of the applicant being kicked out of Parliament for now did not arise. I believe it is to prevent what amounts to inconvenience amounting to hardship on the part of the applicant should it happen that compliance with the lower court’s orders adversely affect her and she has to quit Parliament only for her to be reinstated if she should win the appeal that has necessitated the making of this application. In my view it is a genuine request which must be accepted so that the status quo will be maintained until the appeal has been heard and determined. As between her position and that of the respondent, I think the applicant will suffer greater hardship if she happens to go out of Parliament now and her rights are vindicated later, as against the respondent who can wait till he is declared finally successful in litigation to pave the way for him to take a seat in Parliament.

Thus for the reason that the appeal raises very serious legal questions, a determination of which should come before the status quo may be disturbed, and that greater hardship would be caused the applicant if the application is refused, I will allow the application.

Sapong J. I agree.

Essilfie-Bondzie JA. I agree that the application should be granted. I will however say a few words in support. I want to reiterate that the court does not make a practice of depriving a successful litigant of the fruits of his litigation unless it could be satisfactorily shown that the applicant would suffer great hardship if the application for stay of the judgment is not granted.

In exercising its discretion to either refuse or grant the application, it is not the duty of the court to delve into the mernits of the appeal which is the province of the appellate court. The court will however consider the chances of the applicant; if such chances are mnil., then a stay may be refused.

[p.919] of [1997-1998] 2 GLR 909

In this case an examination of the grounds of appeal, the affidavit filed by the parties and a careful consideration of the submissions of the counsel reveal that very important questions of law have been raised which if accepted by the appellate court will tilt its decision one way or the other. It is my view that the matters raised in the appeal are such that it is necessary that they are fully determined by the appeal court. It is my further view that substantial hardship would be caused to the applicant who has been a member of Parliament for a whole year, if the judgment of the High Court ‘is not stayed. It is important that the status quo should be maintained until a final determination of the appeal. This will meet the justice of the case.

Application granted.

LSNA