THE REPUBLIC vs. NATIONAL ELECTORAL COMMISSION AND MRS. REBECCA ADOTEY EX-PARTE: GEORGE AMOO [2000]DLCA6759

THE REPUBLIC vs. NATIONAL ELECTORAL COMMISSION AND MRS. REBECCA ADOTEY EX-PARTE... [2000]DLCA6759

Date	2000-07-13
Suit No.	CIVIL APPEAL NO.: 42/99.
Citation No.	[2000]DLCA6759

TWUMASI JA (PRESIDING)

ANSAH JA.

ADINYIRA JA.

P. A. ADJETEY WITH KWAMENA BARTELS AND FRANCIS ABAIDOO FOR APPELLANT/RESPONDENT

SAMUEL CODJOE FOR RESPONDENT/APPELLANT

[2000]DLCA6759
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													<main id="main" class="content" style="min-height: 60rem" >THE REPUBLIC<o:p></o:p>vs.<o:p></o:p>NATIONAL
ELECTORAL COMMISSION AND MRS. REBECCA ADOTEY<o:p></o:p>(RESPONDENTS/APPELLANTS)<o:p></o:p>EX-PARTE:
GEORGE AMOO<o:p></o:p>(APPLICANT/RESPONDENT)<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">CIVIL
APPEAL NO.: 42/99. &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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 13TH JULY, 2000<o:p></o:p>

</div>COUNSEL:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align:
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padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">P. A. ADJETEY WITH KWAMENA
BARTELS AND FRANCIS ABAIDOO FOR APPELLANT/RESPONDENT. <o:p></o:p>

<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align:
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RESPONDENT/APPELLANT <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;
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TWUMASI JA (PRESIDING), ANSAH JA.,
ADINYIRA JA.<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;
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</div>TWUMASI, JA: <o:p></o:p>This
is an appeal from the judgment of the High Court, Accra delivered on 15th
December, 1997 in favour of the respondent herein on an application by the
latter for certain reliefs in the nature of prerogative orders, to be precise
for the orders of certiorari and mandamus directed against the Electoral
Commission. The circumstances that led to the institution of the proceedings
before the High Court, as I was able to cull from the introductory parts of the
written statements of Counsel on both sides could be briefly related. In the
run-up of the Presidential and Parliamentary elections held on 7th December 1996,
the second since the restoration of constitutional and multi-party
administration in this country in the post 31st December 1981 revolutionary
era, the parties in this case, each representing his political party contested
the elections to wrest the parliamentary seat of the Ayawaso-West-Wuogon
constituency of the Greater Accra Region of Ghana. Unlike other constituencies
in the country where some losers even congratulated their opponent winners in
the aftermath of the declaration of the final results of the electioneering and
voting exercise, the Ayawaso West-Wuogon constituency became the sore point for
fierce legal tussles in the courts one of them culminating in this appeal. The
respondent who lost the election instituted an action in the High Court, Accra
challenging the results on the grounds, claimed by him, that there had been an
error or omission in the counting of the votes cast and this had consequently
prejudiced his chance of winning the seat. Apparently upon legal advise, he
discontinued the action which he initially commenced by the procedure of
issuing an ordinary writ of summons with a view to filing an election petition
in the High Court, Accra which he in fact did. Unfortunately for the
respondent, The Representation Of The People Law, 1992 (PNDCL 284) turned out
to be the bane of his political ambitions; for Gbadegbe J (as he then was)
peremptorily dismissed the petition on the grounds that the proceeding was
statute-barred. The reason advanced by the learned trial judge was that the respondent
did not fulfil the mandatory statutory requirement of presenting the petition
within a period of 21 days prescribed by the relevant enactment, namely, the
Representation of the People Decree (supra). An appeal against that ruling to
the Court of Appeal was dismissed and he filed yet another appeal with the
Supreme Court, which is still pending. As if unsure of the prospects of the
appeal succeeding, or for some other reason peculiarly within his knowledge,
the respondent, while the appeal to the Supreme Court was pending
determination, again mounted a fresh action taking its inspirational sustenance
from certain provisions of the Constitution, 1992 subsumed under what he called
fundamental human rights. His complaint was that his constitutional rights as a
parliamentary candidate had been violated in the electioneering and voting
exercise because the Electoral Commission had omitted to count certain votes
cast for him. There was a poignant allegation that some votes cast for the
respondent had been wrongly credited to candidates of other political parties.
The remedies sought by the respondent in his renewed bid to vindicate his stand
were the stereotype prerogative orders, the most potent constitutional and
judicial weapon only reserved for the High Court and the Supreme Court under
the Constitution, 1992, the former over all inferior courts, tribunals and
other corporate bodies or individuals, and the latter over institutions of that
character or individuals including even the High Court, to quash their
decisions or acts or to compel them to do their perceived lawful duties and
acts. This procedure operates through the medium of certiorari, mandamus and
quo warranto. The respondent applied to the High Court to cause all the
election results to be brought to court to be quashed and to order the
Electoral Commissioner to assemble all the votes cast, recount them and declare
the winner. <o:p></o:p>The
learned trial judge granted all the reliefs sought by the respondent and made
the necessary orders as prayed. Against this judgment or ruling an appeal has
been lodged by the candidate who was declared winner (in this appeal referred
to simply as the appellant) on three main grounds: — <o:p></o:p>(1)
The learned trial judge erred in granting orders of certiorari and mandamus when
an appeal had been filed against the dismissal of the petition filed on behalf
of the applicant (here substitute respondent). <o:p></o:p>(2)
The learned t</main>