IN THE HIGH COURT OF JUSTICE, HELD AT ACCRA, COMMERCIAL DIVISION ON FRIDAY, THE 28TH DAY OF OCTOBER, 2016 BEFORE HIS LORDSHIP, ERIC KYEI BAFFOUR, ESQ., JUSTICE OF THE HIGH COURT

SUIT NO. GT/1401/2016

THE REPUBLIC

VRS

1.  MRS CHARLOTTE OSEI

2.  THE ELECTORAL COMMISSION

EX PARTE DR. PAPA KWESI NDUOM

RULING

I have before me an application in the nature of judicial review seeking the following reliefs:

One, certiorari to bring to the court the decision of the Respondents dated the 10th of October, 2016 which disqualified the Applicant as a presidential candidate for the 2016 general elections for the purpose of having same quashed.

Two, an order of prohibition to be directed at the Respondents from proceeding with balloting for positions in the presidential elections.

And three for further orders directed against the 1st Respondent in her capacity as Returning Officer for Presidential election to grant the Applicant the opportunity to amend and alter the one anomaly found in his nomination papers as well as accept his nomination papers as amended or altered to enable him contest as a presidential candidate for the 7th of December, 2016 elections.

The grounds upon which the Applicant mounts this application has been stated by him to be anchored on:

1.  Breach of the rules of natural justice (audi alteram partem)

2.  Error apparent on the face of the record.

As an application of this nature launched under Order 55 of the High Court (Civil Procedure) Rules C. I. 47 must of necessity be supported by an affidavit deposed to by or on behalf of the Applicant, the factual basis upon which this application has been made has fully been set out in the Applicant’s affidavit of 14th October, 2016.

I find it necessary to state the essential matters relied on by the Applicant in his thirty-three (33) paragraph affidavit in support. Applicant states that he was elected at the convention of the Progressive Peoples Party (PPP) as its Presidential candidate to contest for the upcoming elections for 2016. That the Respondents, who are mandated by law with the responsibility for the conduct of the elections opened nominations for which he duly picked nomination forms to contest for the office of the President of the Republic.

Applicant notes that the Respondents announced that it would receive the completed nomination papers on the 29th and 30th of September, 2016 and included the specific hours that persons who had evinced an intentions of contesting for the office of President were to submit the nominations papers. Applicant further claim that he dutifully followed the instructions of the Respondents and submitted his forms on the 30th of September, 2016 only to hear ten clear days later on the 10th of October, 2016 at a press conference organized by the Respondents, that he has been disqualified as a presidential candidate on the basis that his nomination papers had one subscriber endorsing Applicant’s forms in two different districts; making the Respondents to conclude that Applicant did not have the requisite number of subscribers required by law to support the nomination.

To Applicant the action of the Respondent to receive the forms only within the last two days of the nomination period meant that the Respondents have denied him the right afforded him by the law to have been given a hearing before a decision was taken regarding the competence of his nomination papers and hence the prayer for the invocation of the supervisory jurisdiction of the High Court.

The Respondents have ardently resisted the application of the Applicant on the ground that it is baseless and undeserving of the reliefs he seeks from the court. In her affidavit in opposition deposed to by the 1st Respondent, she claims that by law she was to provide an opportunity for amendment to forms within the nomination period and that she concedes that the Commission indicated that it would receive the nomination forms on the 29th and 30th of September, 2016; nonetheless the rules regulating the conduct of the elections states that the processes of nomination is concluded by close of day for nomination. And that the Applicant, if it was desirous of taking advantage of the rules, by having the errors on his forms pointed out to him to amend, should have disregarded the notice the Commission gave for the submission of the forms on the 29th and 30th of September and instead submit his forms earlier enough for his errors to have been pointed to him.

And besides, even if the Applicant purported to have relied on the notice issued regarding the two specific dates of 29th and 30th for the submission of his forms, then the Applicant voluntarily assumed the risk associated with the late submission of forms.

1st Respondent, again, claim that Applicant by his own showing has admitted that one subscriber subscribed in more than one district and the nomination forms of the Applicant accordingly did not comply with the law and the decision to declare as invalid the forms of the Applicant was proper and in accordance with the rules. To Respondents, the Applicant had duly been given a proper hearing which came after his disqualification wherein the Applicant admitted knowledge of the criminal subscription to his nomination form and concludes, therefore, that the Applicant had not acted fairly to deserve the exercise of the discretionary power of the court in his favour.

PRELIMINARY LEGAL OBJECTIONS

The 1st Respondent in paragraph 6 of her affidavit in opposition gave indication that the application was incompetent and had preliminary legal objections to raise. Learned counsel, in his statement of case and in his vova voce submission before the court, has raised what I deem to be a hydra headed preliminary legal objections to the propriety of the application before the court. The court can proceed to the merits of this application only after it has determined the preliminary legal objections.

The first preliminary objection raised is to the effect that the Applicant has invoked the jurisdiction of the court by the wrong process, as to counsel for Respondents, the correct process for the Applicant to have approached the court was a petition and not an application for judicial review. Counsel support his submission by Regulation 9(3) and (4) of the Public Elections Regulations, 2016 (C.I.94) which states that:

“Where candidate fails to comply with sub regulation (2), the Returning Officer shall consider the nomination paper of the candidate as invalid and shall

(a) Endorse and sign on the nomination paper the reasons for that decision; and

(b) Inform the Commission”.

And it is after that the Commission shall take a decision on the matter within seven days.

Counsel for Respondent argues that the option available to a candidate who is aggrieved by the decision of the Commission is to be found in Regulation 9(5) which states that:

“This regulation shall not prevent the validity of a nomination to be questioned on an election petition”.

One needs a careful reading of the basis for the Applicant being in court in order to appreciate whether the Applicant falls within Regulation 9(5) of C. I 94 as to compel him to commence his action by petition. Respondent claim that Applicant has only invoked the jurisdiction of the court because 2nd Respondent invalidated his nomination paper, thereby disqualifying him. To appreciate the nature of this application in this manner, with respect, is to habour a limited appreciation of the entire reasons why the Applicant has ran to the court. Applicant claim or question, as far as I understand his application, that Respondent is enjoined to have given him a fair hearing before the close of nomination period, if there was one, to make any amendment or alteration necessary, to his nomination forms before any decision to disqualify him was made. If the Applicant was not alleging any procedural impropriety but only that the decision for his disqualification on the merits was wrong, then, I think, the correct procedure would have been by the mode spelt out under Regulation 9(5) of C. I. 94, that is through a petition.

It is, therefore, my view that commencing an action by way of petition spelt out in regulation 9(5) of C.I 94 is when an applicant challenges the grounds of his disqualification on the merits and not when a disqualified candidate seeks to invoke the supervisory jurisdiction because of a procedural impropriety. See the following cases: REPUBLIC v HIGH COURT (CRIMINAL DIVISION); EX PARTE FRANCIS ARTHUR (Unreported) judgment of the Supreme Court dated 28th July, 2016; J5/29/16; AWUNI v WEST AFRICAN EXAMINATION COUNCIL [2003-2004] SCGLR 471.

Whiles writing this ruling, my attention was drawn to the case of REPUBLIC v NATIONAL ELECTORAL COMMISSION & REBECCA ADOTEY; EX PARTE GEORGE AMOO [13/7/2000] where the Court Appeal per Twumasi JA noted at page 5 of the judgment that where the legislature has provided a special procedure one cannot by pass it to litigate election results by prerogative writs. That case dealt with a party who had commenced an action by petition from the High Court all the way to the Supreme Court and whiles the final appeal was pending at the Supreme Court he decided to take the alternative route of invoking the prerogative writs of the High Court. The learned Judge correctly appreciated the issue in that case, when he stated as follows, that it was not opened to a Judge to assume fresh jurisdiction under the cloak of an application for prerogative orders in a disputed election results for which an election petition had previously been filed. That in itself amounted to an abuse of the judicial process. Ex Parte Amoo, is therefore, not an omnibus authority, to argue that this court is restrained from proceeding to examine this application as not being the right procedure for approaching the court.

The second preliminary legal objection, I glean, is that even if the Applicant had come by way of petition, his cause of action would still not have accrued, and that having recourse to the court by way of petition is available only after the conduct of the elections. Counsel supports his submission with the cases of REPUBLIC HIGH COURT, SUNYANI, EX PARTE COLLINS DAUDA (BOAKYE-BOATENG INTERESTED PARTY) [2009] SCGLR 447; REPUBLIC v HIGH COURT, KOFORIDUA, EX PARTE ASARE (BABA JAMAL, INTERESTED PARTY) [2009] SCGLR 460.

I think, again with deep respect, counsel’s submission is gravely misconceived. The cases cited deals with the challenge to the validity of an election to Parliament under section 16 of the Representation of the Peoples Law, 1992 (PNDCL 284) which can only be questioned by a petition. The time for the presentation of a petition has been stated under section 18 of the said Law to be within 21 days after the publication in the Gazette of the results of the election. Counsel cannot stretch the time period given by the law under PNDCL 284 to mount a challenge questioning the validity of the election of a candidate as a member of Parliament to encompass an allegation of a challenge of a person regarding a breach of a procedural rule under C.I 94. In any case, I have found that approaching the court, as in this case as the Applicant did, is not by way of petition and the subsequent argument of needing to wait until after the elections is a non sequitor.

The third in the trilogy of the preliminary legal objections launched by counsel for the Respondents is founded on an alleged non-compliance with the formal requirements for judicial review. Counsel for respondent relies on what the Rules say an application for judicial review should comply with under Rule 4 of Order 55 of the High Court (Civil Procedure) Rules, C.I. 47 which states as follows:

“Mode of Application

(1) An application for judicial review shall be made to the High Court by motion

(2) The motion shall be supported by an affidavit by or on behalf of the applicant which shall contain the following particulars:

(a) The full name, description and address for service of the applicant

(b) The facts upon which the applicant relies;

(c)  The relief or remedy sought by the applicant and the grounds on which he seeks the relief or remedy; and

(d) The full name, description and address for service of the person directly affected by the application”.

Counsel’s submission is that the above detailed information were found in the motion paper of the applicant but not in the affidavit, and this to him is fatal as the rules mandates that the information should rather be contained in the affidavit and not the motion paper as the Applicant had done.

I concede that the rules mandates an applicant to state the particulars required under Rule 4 of order 55 of C. I. 47 in the affidavit. Having put those particulars not in the affidavit but in the motion paper; what then is the net effect. Counsel for Respondent argues that this slip should lead to the dismissal of Applicant’s application before the court. I am unable to accede to this invitation by counsel for Respondent for the dismissal of the application and the reasons of the court are as follows:

It is trite that where a step taken by a party to a proceedings is fundamentally defective such a defect or error is beyond the curative and redemptive powers of the court. See REPUBLIC v HIGH COURT, KUMASI; EX PARTE ATUMFUWA [2000] SCGLR Beyond that the failure to strictly comply with a procedural rule will not lead to an automatic dismissal of a suit due to the saving grace of Order 81(1) of C. I. 47 which notes that the failure to comply with the requirements of the Rules, whether in respect of time, place, manner, form or content shall not nullify the proceedings. I understand the authoritative pronouncement of Dr. Date-Bah JSC in the case of REPUBLIC v HIGH COURT; EX PARTE ALLGATE CO LTD (AMALGAMATED BANK LTD) INTERESTED PARTY [2007-2008] SCGLR 1041 to mean this: that all breaches of the Rules of court are curable and may be waived by the court in the exercise of its discretion except three main irregularities that cannot be waived. These are: