MARTIN ALAMISI AMIDU vs. THE ELECTORAL COMMISSIONER AND THE MANAGER, ASSEMBLY PRESS [2002]DLSC6417

MARTIN ALAMISI AMIDU vs. THE ELECTORAL COMMISSIONER AND THE MANAGER, ASSEMBLY P... [2002]DLSC6417

Date	2002-01-30
Suit No.	WRIT NO. 3/2001
Citation No.	[2002]DLSC6417

WIREDU CJ (PRESIDING)

BAMFORD-ADDO (MRS) J.S.C.

AMPIAH J.S.C.

ADJABENG J.S.C.

ATUGUBA J.S.C.

AKUFFO (MS) J.S.C.

LAMPTEY J.S.C.

PLAINTIFF IN PERSON. MR. ADUAMAH OSEI FOR THE DEFENDANTS

[2002]DLSC6417
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													<main id="main" class="content" style="min-height: 60rem" >MARTIN ALAMISI AMIDU<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>THE
ELECTORAL COMMISSIONER AND THE MANAGER, ASSEMBLY PRESS
 (DEFENDANTS)<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;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">WRIT
NO. 3/2001&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: 30TH JANUARY, 2002<o:p></o:p>

</div>COUNSEL:<o:p></o:p>PLAINTIFF IN PERSON. <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">

MR. ADUAMAH OSEI FOR THE DEFENDANTS.<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;
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WIREDU CJ (PRESIDING), BAMFORD-ADDO
(MRS) J.S.C., AMPIAH J.S.C., ADJABENG J.S.C., ATUGUBA J.S.C., AKUFFO (MS)
J.S.C., LAMPTEY J.S.C.<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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JUDGMENT<o:p></o:p>

</div>SOPHIA
A. B. AKUFFO, J.S.C.: <o:p></o:p>On
7th December 2000, the 1st defendant conducted Parliamentary elections
throughout the country. Subsequent to these elections, the results were
formally published in Ghana Gazette Number 1. This publication was dated Friday
5th January 2001. The Plaintiff contends that Gazette No. 1 (hereinafter
referred to as 'the Gazette') was actually published on or about 16th January
2001 and, thus, the date printed thereon is retrospective and therefore
unconstitutional and unlawful. Consequently the Plaintiff issued the writ
herein for declarations of this Court to the effect that:— <o:p></o:p>1.
On a true and proper interpretation of articles 2(1) (a) and (b), 51, 99, and
107 of the Constitution, Sections 16, 17 and 18 of the Representation of the
People Law, 1992 (PNDCL 284) and Paragraphs 41 (1) and (2) of the Public
Elections Regulations, 1996 (CI 15), no person may procure, facilitate or cause
any Gazette on Parliamentary elections results to be published with a
retrospective date; <o:p></o:p>2.
The conduct of the Defendants in causing to be published and publishing Gazette
No. 1 with a retrospective date is in contravention with and inconsistent with
the Constitution; <o:p></o:p>3.
Therefore Gazette No. 1 is in contravention of and inconsistent with the
Constitution and as such null, void and of no effect whatsoever. <o:p></o:p>In
support of his claims, the plaintiff asserted that, between 9th and 15th
January 2001, he, at various times, made enquiries from the Legislative and
Drafting Division of the Attorney General's Office as well as the offices of
the 2nd defendant and was informed that the notice of results and declarations
to be published in the Gazette were being verified and corrected. Consequently,
he raised an objection with the defendants when, on 17th January 2001, he
obtained a copy of the Gazette and noticed that the publication date stated
thereon was 5th January 2001. <o:p></o:p>The
1st defendant, in its written submissions, contended that the plaintiff had
failed to demonstrate the manner in which any of the Constitutional Articles
upon which he relies have been contravened or how the reliefs claimed properly
arise from those articles. The 1st defendant, therefore, submitted that the action
must be dismissed in limine. Since this submission raises an issue of law which
goes to the root of the plaintiff's action, I will deal with it first, for if
no provision of the Constitution has been contravened, the result will be that
our Jurisdiction under Article 2 has not been properly invoked. <o:p></o:p>For
case of reference, I will set out below and briefly discuss the provisions upon
which the plaintiff relies. Article 2(1) (a) and (b) reads as follow:— <o:p></o:p>"A
person who alleges that — <o:p></o:p>(a)
an enactment or anything contained in or done under the authority of that or
any enactment; or <o:p></o:p>(b)
any act or omission of any person is inconsistent with, or is in contravention
of a provision of this Constitution, may bring an action in the Supreme Court
for a declaration to that effect." <o:p></o:p>Needless
to say, in order to invoke this court's jurisdiction under Article 2, the
provision alleged to have been contravened must be a provision of the
Constitution, not the provisions of any other enactment, whether or not such an
enactment was made pursuant to a power or authority conferred by the
Constitution. This Court has on previous occasions made this position quite
clear. Thus in NDC V. the Electoral Commission, Writ No. 6/2001, (unreported
S.C. judgment dated June 14th 2001) his Lordship Mr. Justice Wiredu JSC (now
CJ) in his written opinion expressed himself thus:— <o:p></o:p>"Where
an act or omission of any person is challenged under Article 2, such act or
omission must be shown to have taken place, and it must be shown that such act
or omission falls foul of a specific provision of the Constitution, or at the
very least, the spirit of an actual provision. Thus, in an action such as the
Plaintiff's for the kind of declaration being sought, simply making reference
to an enabling constitutiona</main>