fundamentally wrong in his having done so. Hodgson v Armstrong [1967]1 All E.R. 307, C.A. considered. (2) Per Azu Crabbe J.A . Although the payment of s ecurity for costs through the bank would not be payment according to Order 65, r.4, this was a procedural error which, because it can be waived by the other party without any injustice to him, can be considered as an irregularity and the court was able to cure the defect by applying Order 70, r.1. MacFoy v United Africa Co., Ltd. [1962] A.C. 152, P.C. and dictum of Lord Denning M.R. in In re Pritchard [1963]1 Ch. 502 at p. 516, C.A. applied. Per Amissah J.A . Since the respondent had divested himself of the funds at the appropriate time, the registrar had consented to the method of payment and the appellant had not been prejudiced by the act or the method adopted, then the respondent had, on 10 October, given security in the required amount and within the ti me limited.” Again in Osman v Tedam (1970) 2 G&G 1246 (2d) C.A and Osman v Kaleo (1970) 2 G&G 1380 C.A. the Court of Appeal held that though the respondents were members of the Convention People‟s Party whose constitution made all members of Parliament of the Convention People‟s Party members of the party‟s Regional Executive Committees, that did not without more, make the respondents members of such committees and therefore disqualified to contest the 1969 parliamentary elections, which they had won. T he Osman v Kaleo case is even more striking. Though the respondent had secured exemption from disqualification from contesting the parliamentary elections, it was submitted that since his exemption had not been published in the Gazette, upon which publica tion it would have effect, under paragraph 3(5) of NLCD 223, 1968, the same was inoperative, notwithstanding that under paragraph 3(7) of that Decree the decision of the Exemptions Commission was final and conclusive. The Court of Appeal rejected that con tention. At 1385 Sowah J.A held as follows: “Amongst the procedure adopted by the commission was the announcement of its decision after hearing an applicant . There is not much substance in the argument that since there was no publication in the Gazette t he exemption was not valid .” At 1391 Apaloo J.A trenchantly held as follows: “That the defendant appeared before the commission and satisfied it that he was deserving of exemption, is beyond question. He produced a certificate to that effect signed by a ll the members of that commission. After this, the defendant need do no more. A mandatory duty is cast upon the commission to notify the National Liberation Council of this fact and the latter is under an obligation no less mandatory to publish this fact in the Gazette . Both these statutory duties are mere ministerial acts with which a successful party before the commission is not concerned . But in his favour, it ought to be presumed that all these official acts were properly performed. Omnia praesumun tur rite esse acta . It would indeed be odd if a person who satisfied the commission and was so informed were to be said to be still under the disability from which he was freed because either the commission or the National Liberation Council failed to per form its official duties . I think the defendant gained exemption under paragraph 3(5) of N.L.C.D. 223 and I am in disagreement with Mr. Bannerman on this point. ” (e.s) This reasoning should restrain this court from nullifying the otherwise sacred votes o f citizens due to the oversight of the presiding officers in not signing the Results. Also in Nartey v Attorney - General and Justice Adade (1996 - 97 SC GLR 63 this court after declaring the second defendant‟s continued stay in office beyond one year of the e xtension of tenure as unconstitutional under the 1992 constitution further held that that declaration should not affect prior judgments delivered or participated in by him, so as to protect third parties‟ rights. This is in line with article 2(2) of the constitution which empowers this court thus: “ 2. Enforcement of the Constitution (2) The Supreme Court shall, for the purposes of a declaration under clause (1) of this article, make such orders and give such directions as it may consider appropriate fo r giving effect, or enabling effect to be given, to the declaration so made .” (e.s) As to the general principles for determining an election petition various tests have been formulated. The English approach was extensively evaluated in Evov. Supa (1986) LRC (Const) 18 but the court eventually concluded in much the same way as the Kenyan Supreme Court did in Raila Odinga v the Independent Electoral and Boundaries Commision and Others namely, “Did the petitioner clearly and decisively show the conduc t of the election to have been so devoid of merits , and so distorted as not to reflect the expressing of the people‟s electoral intent? It is this broad test that should guide us in this kind of case, in deciding whether we should disturb the outcome of t he Presidential election . ” Mr. Quashie - Idun, counsel for the 2 nd respondent urged on us that the provisions relating to the validity of an election in the Representation of the Peoples Law, 1992 (PNDCL 284 are applicable to a presidential election petitio n. Having pondered over the matter I cannot uphold that submission. The preamble to that law shows that it relates to parliamentary elections. Mr. Quashie - Idun‟s contention is piously based on only the Representation of the People (Amendment) Law, 1992 which amends the definition of “election” which in s.50 of PNDCL 284 related to parliamentary elections only, to mean “any public elections.” The original definition excluded from its purview District level elections, etc which the High Court could also h andle. The amendment will now cover such elections also. The definition of Court though as a court of competent jurisdiction is referable to courts which under the provisions of PNDCL 284 have various roles to play. This however is somewhat academic sin ce the principles laid down in Re Election of First President Appiah v Attorney - General (1970) 2 G&G 2d 1423 C.A at 1435 - 1436 when determining a presidential election under provisions of the 1969 Constitution which are in pari material with article 64 of t he 1992 Constitution are substantially the same as those in PNDCL 284. The Court said: “We wish to conclude with the words of Kennedy, J. in the Islington West Division Case, Medhurst v. Laugh and Casquet (1901) 17 T.L.R. 210 (at page 230): “An election ou ght not to be held void by reason of transgressions of the law committed without any corrupt motive by the returning officer or his subordinate in the conduct of the election where the court is satisfied that the election was notwithstanding those transgre ssions, an election really and in substance conducted under the existing election law, and that the result of the election, that is, the success of the one candidate over the other was not and could not have been affected by those transgressions. If on t he other hand the transgressions of law by the officials being admitted, the court sees that the effect of the transgressions was such that the election was not really conducted under the existing election laws, or it is open to reasonable doubt whether th e candidate who has been returned has really been elected by the majority of persons voting in accordance with the laws in force relating to elections, the court is then bound to declare the election void. It appears to us that this is the view of the law which has generally been recognised and acted upon by the tribunals which have dealt with election matters.” And again, the judgment in the case of Woodward v Sarsons (1875) 32L.T(N.s.) 867 at pp.870 - 871: “... we are of opinion that the true statement i s, that an election is to be declared void by the common law applicable to Parliamentary elections, if it was so conducted that the tribunal, which is asked to avoid it, is satisfied, as a matter of fact, either that there was no real electing at all, or t hat the election was not really conducted under the subsisting election law: . . But if the tribunal should only be satisfied that certain of such mishaps had occurred, but should not be satisfied either that a majority had been, or that there was reason t o believe that a majority might have been prevented from electing the candidate they preferred, then we think that the existence of such mishaps would not entitle the tribunal to declare the election void by the common law of Parliament.”” This is much th e same as Canadian case of Opitz v. Wrzensnewskyj 2012 SCC 55 - 2012 - 10 - in which the court said as follows: “The practical realities of election administration are such that imperfections in the conduct of elections are inevitable ... A federal election is only possible with the work of thousands of Canadians who are hired across the country for a period of a few days or, in many cases, a single 14 - hour day. These workers perform many detailed tasks under difficult conditions. They are required to apply mu ltiple rules in a setting that is unfamiliar . Because elections are not everyday occurrences, it is difficult to see how workers could get practical on - the - job experience ... The current system of electoral administration in Canada is not designed to achi eve perfection, but to come as close to the ideal of enfranchising all entitled voters as possible . Since the system and the Act are not designed for certainty alone, courts cannot demand perfect certainty. Rather, courts must be concerned with the integ rity of the electoral system . This overarching concern informs our interpretation of the phrase “irregularities ...that affected the result.” (Rothsterin and Moldaver JJ).” The petitioners through their counsel‟s written Address, at p.88 rely on Besigye Kuza v Museveni Yoweri Kaguta and Election Commission [2001] UGSC 3 Judgment dated 20 th April 2001 quoted Odoki CJ of Uganda saying: “From the authorities I have cited there is a general trend towards taking a liberal approach in dealing with defective af fidavits. This is in line with the constitutional directive enacted in article 126 of the Constitution that the courts should administer substantive justice without undue regard to technicalities ...” At p. 89 counsel also submitted as follows: “In the Nigerian case of Dr. Chris Nwebueze Ngige vrs Mr. Peter Obi and 436 Others [2006] Volume 18 WRN 33, it was held by the Court of Appeal at holding 30 that, election petitions are by their nature peculiar from the point of view of public policy. It is, therefore, the duty of the court to endeavour to hear them without allowing technicalities to unduly fetter their jurisdiction.” Consequently the petitioners seek equity from this court (which they deny to the pink sheets) as follows: “It is therefor e submitted that since the affidavit of the 2 nd petitioner to which the pink sheets were annexed was duly executed and sworn to, the unavoidable errors of pink sheet exhibits, where the authenticity is not disputed by the respondents, ought to be treated and waived as mere irregularity, so that the said pink sheets exhibited which are already in evidence can be considered and evaluated in the interest of substantial justice .” CONCLUSION In modern times the courts do not apply or enforce the words of statutes but their objects purposes and spirit or core values. Our constitution incorporates its spirit as shown for example, in article 17(4) (d). This means that it should not be applied to satisfy its letter where its spirit dissents from such an application. Thus in Black v Value Capital Ltd. (1975) 1 WLR 6 Goulding J held as stated in headnote 2 thus: “That although he plaintiffs‟ proposed amendments could technically be brought under paragraph (f) or (i) and (j) of Order 11, r.1(1) , they should not be allowed since to do so would be an application of the letter but not of the spirit of the rule , in that it would allow the trial in England of a dispute between foreigners merely because it concerned money in the hands of English bankers whose only interest therein was their proper bank charges, or because the agreements were expressed to have been executed in London, although the disputant companies were neither incorporated, resident nor trading in England, and the agreements were expressly to be governed by and enforced in accordance with Bahamian law (post, pp. 15G - 16A); that in all the circumstances the only court that could effectively exercise jurisdiction was the Bahamian court which could act in personam against PRL and VCL and compel the us e of their names and seals, and which was already seised of the winding up petitions, and leave to amend would therefore be refused (post, p. 16D - F)” The Mischief rule of construction is much the same as the spirit of a statute. In Catherine v Akufo - Addo (1984 - 86) 1 GLR 96 C.A at 104 Mensa Boison J.A in delivering the judgment of the Court of Appeal said: “It is a sound rule, where the words admit, that an enactment should be construed such that the mischief it seeks to cure is remedied, but no more. ” F urther allied is the rule of construction relating to absurdity, see Brown v Attorney - General (2010) SC GLR 183. It would indeed be absurd for the courts to hold as was done in Republic v Chieftaincy Committee on Wiamoasehene Stool Affairs; Ex parte Oppon g Kwame and Another [1978] 1 GLR 467 C.A (Full Bench) and do otherwise in this case. As stated in the headnote to that case: “Having been destooled by the Agona Ashanti Traditional Council, the Wiamoasehene appealed, and the National Liberation Council (N .L.C.) acting under Act 81, s.34 appointed a chieftaincy committee to inquire into the matter. The committee found the destoolment null and void and recommended that the appeal be allowed. The N.L.C. confirmed the findings by a notice in the Local Govern ment Bulletin which also included the phrase “that the appeal be dismissed.” A corrective notice repeating the confirmation but using the phrase “That the appeal be allowed” was published in a subsequent Local Government Bulletin. This attempt at correcti on was challenged by certiorari proceedings on the grounds that when the second notice was published the N.L.C. was functus officio and had no right to effect corrections after the first publication; and even if it had such right, the party adversely affec ted should have been given an opportunity to challenge the correction. The High Court held that the N.L.C. was precluded from re - opening the matter and this decision was affirmed by the Court of Appeal. On an application for review by the full bench, H eld, allowing he application: (1) on the facts, far from having a change of mind, the N.L.C. had from the outset been desirous of giving force to the decision of the chieftaincy committee. The deliberate and repeated use by the N.L.C. of the term “confirm ed” made it clear that not only was the first publication contrary to the findings and recommendations of the chieftaincy committee, but also that an obvious mistake had occurred . The argument that a word once inscribed in print was beyond recall was cont rary to good sense. Even the finality of res judicata permitted the correction of clerical mistakes by the contrivance of the “slip rule.”” (e.s) Indeed when the constitution itself or any statute commits an error this court rectifies it see Agyei Twum v Attorney - General Akwety (2005 - 2006) SC GLR 732 where a constitutional omission relating to the procedure for the removal of the Chief Justice was rectified by reading into the relevant provisions, the necessary addition. To sum up the result sought by the petitioners in this case would involve what Mackinnon J protested against in British Photomaton Trading Company, Limited v Henry Playfair, Limited (1933) 2 K.B 508 at 520 when he said: “this is a result against which one is inclined to struggle, because it tends to outrage both common sense and what is fair.” REFORMS This petition however has exposed the need for certain electoral reforms. I mention same of them. The Voters register must be compiled and made available to the parties as early as possible. A supplementary register may cater for late exigencies. The calibre of presiding officers must be greatly raised up. The pink sheet is too elaborate, a much simpler one to meet the pressures of the public, weariness an d lateness of the day at the close of a poll etc. The carbon copying system has to be improved upon. The Biometric Device System must be streamlined to avoid breakdowns and the stress on the electorate involved in an adjournment of the poll. Invalidating w holesale votes for insignificant excess numbers is not the best application of the administrative principle of the proportionality test. The South African biometric system as judicially reviewed in The New National Party of South Africa v The Government o f the Republic of South Africa , Case CCT 9/99 dated 13/4/1999 may be instructive. However it is judicially acknowledged that the Electoral Commission is the body mandated by the constitution to conduct Elections and Referenda in Ghana and their independenc e must be respected as required by article 46 of the constitution. Their subjection to judicial control under articles 295(8), 23 and 296 (a) and (b) must be operated within the well known principles of judicial review of administrative action. The case of Appiah v Attorney - General , supra therefore cautions that the reasonable exercise of a discretion by them in situations that may confront them ought not to be judicially impeded. K P M G I do not know how to express the gratitude of the judiciary and in deed of Ghana to KPMG for their unprecedented selfless and patriotic service so fully rendered this court with such professionalism and dedication. They are a rare species of Lover of Ghana and the cause of justice and democracy. We are also grateful to counsel for their industry. But in the end I am driven by the sheer justice of this case which hinges much on technicalities of the pink sheet, to dismiss the same subject to the useful
Posted on: Wed, 04 Sep 2013 16:03:43 +0000
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