NEW PATRIOTIC PARTY vs ELECTORAL COMMISSION AND ANOTHER (NO 2) [1993]DLSC4245

Date	1993-09-16
Suit No.
Citation No.	[1993]DLSC4245

ABBAN JSC

AMUA-SEKYI JSC

AIKINS JSC

WIREDU JSC

AMPIAH JSC

ANTHONY FORSON

ATTORNEY-GENERAL (WITH HIM MRS ADUSA-AMANKWAH) FOR THE DEFENDANTS.

NANA AKUFO-ADDO (WITH HIM PHILIP ADDISON AND ALEX QUAYNOR) FOR THE PLAINTIFF.

[1993]DLSC4245
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													<main id="main" class="content" style="min-height: 60rem" >NEW PATRIOTIC PARTY<o:p></o:p>vs<o:p></o:p>ELECTORAL COMMISSION AND
ANOTHER (NO 2)<o:p></o:p>[SUPREME
COURT, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

[1993 - 4] 1 GBR 4 - 23 S C&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE:&nbsp;
16 SEPTEMBER 1993<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>ANTHONY
FORSON, ATTORNEY-GENERAL (WITH HIM MRS ADUSA-AMANKWAH) FOR THE DEFENDANTS.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

NANA
AKUFO-ADDO (WITH HIM PHILIP ADDISON AND ALEX QUAYNOR) FOR THE PLAINTIFF.&nbsp;&nbsp; <o:p></o:p>

</div>CORAM:<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

ABBAN
JSC, AMUA-SEKYI JSC, AIKINS JSC, WIREDU JSC, AMPIAH JSC<o:p></o:p>

</div>ABBAN
JSC. The plaintiff is a registered political party. The first defendant, the
Electoral Commission, by virtue of Electoral Commission Act 1993 (Act 451), has
been charged with the responsibility of conducting and supervising all public
elections and referenda in the country. The second defendant, the
Attorney-General, was sued as the legal representative of the Government of
Ghana.<o:p></o:p>In
its statement the plaintiff pleaded, inter alia, that the first defendant,
acting through its Executive Secretary, on the 14th of August 1993, issued written
directives to all the district assemblies in the country urging them to hold
elections in order to elect district chief executives for each district
assembly in accordance with article 243 of the 1992 Constitution and that the
elections should take place between 18th and 30 August 1993. The defendants
averred in paragraph 1 of their amended defence that the facts so far stated
supra were correct.<o:p></o:p>It
may be recalled that the present district assemblies were established by the
Local Government Law 1988 (PNDCL 207) (as amended). Elections were held under
that Law to elect assembly-men to all the district assemblies. By section 3(3)
of PNDCL 207, elections to the district assemblies were to be held every three
years. But this section was later amended by the Local Government (Amendment No
3) Law 1992, (PNDCL 272) which extended the three years to four years. That is,
the amendment provided that elections to “district assembly shall be held once
every four years”. There was further amendment made on 4 January 1992. This was
by the Local Government (Amendment) Law 1993 (PNDCL 306). We will here quote
the full text of the amendment:<o:p></o:p>&nbsp;“District assemblies in existence on the
coming into force of this Law shall continue in existence until such time as
new Assembly members are elected.”<o:p></o:p>In
other words, those who were members of the district assemblies at the time the
Constitution came into force on 7th January 1993 were to continue to serve as
assembly-men pending the election of new assembly-men. Thus the present
assembly-men derive their right to be members of the district assemblies from
the Local Government (Amendment) Law 1993 (PNDCL 306).<o:p></o:p>In
paragraphs 6 and 7 of the statement of the plaintiff’s case, the plaintiff
summed up the basis upon which it sought the reliefs. They read as follows:<o:p></o:p>&nbsp;“6. Plaintiff contends that the assemblies
provided by article 242 of the Constitution are different entities in their
character, composition and term from those established pursuant to the Local
Government Law 1988 (PNDCL 207).<o:p></o:p>7. Plaintiff further contends that the
elections of the district chief executives pursuant to article 243 of the
Constitution shall be made only by the assemblies provided for by article 242
thereof.”<o:p></o:p>The
defendants, in their amended statement of case, denied paragraphs 5, 6 and 7 of
the plaintiff’s statement of case and averred that PNDCL 272 did not offend any
statutory provisions and that “although the district assemblies as presently
constituted were not established under the Constitution of the 4th Republic,
yet certain provisions of the said Constitution saved the district assemblies
as presently constituted”. The pivot of the defence could be found in
paragraphs 4, 5 and 6 of the amended statement of case which we quote:<o:p></o:p>“4. In answer to the said paragraphs,
the defendants contend that the combined effect of the Local Government
(Amendment) Law 1993 (PNDCL 306), article 11(4) of the Constitution and section
31(2) of the Transitional Provisions of the Constitution is to make the
assemblies in existence before the coming into force of the Constitution of the
4th Republic to continue in existence with powers and functions as envisaged
under the Constitution until elections are held under article 242 of the
Constitution.<o:p></o:p>5. In further answer to the said
paragraphs the defendants contend that in exercise of their functions under the
Constitution, the said district assemblies in accordance with article 89(2)(c)
elected their representatives to the Council of State. The plaintiff during the
said elections did nothing to prevent the elections from going ahead.<o:p></o:p>6. The defendants therefore contend
that the plaintiff is estopped by inaction and acquiescence from contending
that the district assemblies as presently constituted are not properly
constituted for the discharge of the functions of the district assemblies under
the Constitution.<o:p></o:p>7. The defendants finally contend that
the holding of elections conducted by the lst defendant of the district chief
executives by the assemblies as presently constituted is proper and in
conformity with the letter and spirit of the Constitution.”<o:p></o:p>Leading
counsel for the plaintiff, Nana Akufo-Addo, submitted that the authority to
give approval to appointment of district chief executives under article 24 of
the Constitution could only be given by the district assemblies to be
established under the Constitution and that the present district assemblies do
not have the mandate or constitutional authority to give approval of
nominations of district chief executives.<o:p></o:p>He
further contended that the statutory functions conferred on district assemblies
by PNDCL 207 did not ext</main>