MICHAEL YEBOAH vs. JOSEPH HENRY MENSAH [1998]DLSC6420

Date	1998-06-06
Suit No.	WRIT NO. 2/97
Citation No.	[1998]DLSC6420

HAYFRON-BENJAMIN JSC. (PRESIDING)

AMPIAH JSC

KPEGAH JSC

ACQUAH JSC

ATUGUBA JSC.

MR. KWAKU BAAH FOR THE PLAINTIFF/RESPONDENT

NANA AKUFO ADDO FOR THE DEFENDANT/APPLICANT

[1998]DLSC6420
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													<main id="main" class="content" style="min-height: 60rem" >MICHAEL YEBOAH<o:p></o:p>(ETITIONER/APPELLANT/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>JOSEPH HENRY MENSAH<o:p></o:p>(DEFENDANT)<o:p></o:p>[SUPREME
COURT, ACCRA]<o:p></o:p><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

</div>COUNSEL:<o:p></o:p>MR. KWAKU BAAH FOR THE
PLAINTIFF/RESPONDENT <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 FOR THE
DEFENDANT/APPLICANT <o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp; <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">

HAYFRON-BENJAMIN, JSC. (PRESIDING)
AMPIAH, JSC. KPEGAH, JSC. ACQUAH, JSC. AND ATUGUBA, JSC.<o:p></o:p>

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

RULING<o:p></o:p>

</div>C.
HAYFRON-BENJAMIN, J.S.C.: <o:p></o:p>MR.
JOSEPH HENRY MENSAH was on the 7th December, 1996 elected the Member of
Parliament for the SUNYANI EAST Constituency in the nationwide Parliamentary
elections. On the 25th February, 1997 the Plaintiff, Mr. Michael Yeboah, caused
a writ to be filed in this Court invoking our original Jurisdiction in terms of
Articles 2,94(1) and 130 of the Constitution 1992 and Rule 45 of the Supreme
Court Rules 1996 (C.I. 16). The plaintiff claimed that MR. J.H. Mensah
(Defendant) at the time of the election was not qualified or competent to
become a Member of Parliament in terms of Article 94(1)(b) of the Constitution.
<o:p></o:p>The
Defendant, while admitting that he hailed from the SUNYANI WEST Constituency
nevertheless contended that he was eligible for election to the seat for the
SUNYANI EAST Constituency and had been validly elected as such Member of
Parliament for the constituency. The Defendant further contended that the
Plaintiff’s action was incompetent as having been instituted in the wrong forum
as in substance the writ was an election petition. In the Defendant’s
submission the writ was <o:p></o:p>“unmeritorious,
frivolous, vexatious and abuse of the process of this Court”. <o:p></o:p>The
Defendant further submitted that he would at the hearing of this writ raise a
preliminary objection and gave substantial reasons for taking that preliminary
objection. The objection was based on THE REPRESENTATION OF THE PEOPLE LAW 1992
(P.N.D.C.L. 284) This Court therefore ordered the Preliminary objection to be
set down formally. The gravamen of the preliminary objection was that the
Plaintiff had dressed an election petition in the garb of a constitutional
issue seeking in aid of his original writ the exercise of our enforcement
powers. In my respectful opinion if that proposition is correct then the matter
is covered by authority and the objection must succeed in limine. <o:p></o:p>In
his defence, the Defendant had averred that this writ was part of an
"orchestrated attempt" by some three constituents to unseat him in
Parliament and that two of these "players" had properly presented an
election petition in the High Court, Sunyani. On the 12th May, 1997 the High
Court, Sunyani dismissed their petition: <o:p></o:p>“"Upon
a preliminary point of law that raised by the Defendant to the effect that the
action was Statute-barred”. <o:p></o:p>The
Defendant does not appear to have made much capital of this decision. However
it will be seen from the provisions of section 19 of P.N.D.C.L. 284 that by
that decision of the High Court, Sunyani on the 12th May, 1997 the Defendant
"whose election is questioned has been duly elected" such a decision
as was given by the High Court was in my respectful opinion a judgment in rem
and operated to conclude the matter for all time unless it was set aside on
appeal. The Plaintiff contends that the Defendant misconceives the import and
meaning of Articles 94 and 99 of the Constitution of 1992. <o:p></o:p>The
Plaintiff contends that his case is in essence that the Defendant is not
qualified in terms of Article 94(1)(b) of the said Constitution. He relies on
Article 130(1) of the Constitution and submits that under and by reasons of
that article <o:p></o:p>"the
Supreme Court shall have original jurisdiction. In all matters relating to the
enforcement or interpretation of the Constitution". <o:p></o:p>The
Plaintiff inferentially concedes that an issue of interpretation may not arise,
but there was certainly a matter for enforcement of a provision of the
Constitution for which this Court is pre-eminently vested with jurisdiction.
Plaintiff submits that Article 94 deals with the qualification of persons who
offer themselves for election, while Article 99 deals with the election process
itself. In the submission of the Plaintiff there is a difference between the
two Articles of the Constitution. As Plaintiff puts it <o:p></o:p>"The
difference may be likened to the difference between the trees and the forest”. <o:p></o:p>The
Plaintiff finally rests his case on the case of GBEDEMAH VRS. AWOONOR-WILLIAMS
2 G&amp;G 438. <o:p></o:p>